TRADE SECRET PROTECTION IN RELATION TO EMPLOYMENT
AGREEMENTS
Introduction
The occurrence of disclosure of information owned by one party to another party without
being known by the owner of the information can cause losses to the owner of the
information. Disclosure of information can be made by the workforce of the information
owner. An employee can cause what is called trade secret infringement by disclosing
information to other companies.
Maintenance of information confidentiality must be carried out by the owner of
confidential information by taking reasonable and appropriate steps. This means that all
measures containing measures of reasonableness, feasibility, and appropriateness must be
taken. The maintenance of confidentiality is usually related to the relationship between
workers and employers who are the owners of trade secrets. In the work environment, it is
necessary to regulate company procedures that can guarantee the confidentiality of
information. It is also necessary to clearly and firmly regulate in company regulations
regarding the party responsible for confidential information. Trade secrets are protected by
law along with the birth of related information and begin to function in economic activities.
Actually this problem has existed arrangement. The arrangement referred to here is the
obligation for workers to maintain the confidentiality of information owned by the place
where they work based on the agreement that regulates it. A worker has an obligation to his
company to maintain the company's trade secrets. The way the company manages and
controls the company's confidential information greatly affects how its workers will maintain
the confidentiality of the information. One of the first steps taken by employers in protecting
their company's trade secrets is by making arrangements in the employment agreement with
their workers. It is clear that there is a relationship between trade secrets and labor.
Problem Formulation
Based on the description in the introduction above, the problem formulation in this
writing is: "How is the relationship between trade secrets and employment agreements?"
Definition And Regulations About Trade Secrets. Development of Trade Secret Regulation
The regulation of trade secrets in United States is still relatively new. The basis of the
regulation is ratification of the Agreement Establishing the World Trade Organization
(Agreement Establishment World Trade Organization (WTO) which includes the Agreement
on Trade Related Aspects of Intellectual Property. Rights (TRIPs Agreement) with Law No.
7 of 1994 so that it is necessary to regulate trade secrets. In United States, trade secrets are
regulated for the first time through Law No. 30 of 2000 concerning Trade Secrets. Initially,
legal protection regarding all forms of unfair competition practices was regulated by the signs
and norms in Article 1365 of the Civil Code and Article 382 bis of the Criminal Code.
But then it becomes a problem after it is packaged as an intellectual property product.
This means that the concept of unfair competition as a general law is more narrowed or
focused on the law that protects commercially motivated fraudulent practices. This need is
formulated in Law No. 30 Year 2000 on Trade Secrets. In general, it can be said that this
trade secret law also complements Law No. 5 Year 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition.
Trade Secret is also known as Undisclosed Information (WTO/TRIPs) or Confidential
Information (UK), or Trade Secret (US), and United States calls it Trade Secret, which is a
translation of Trade Secret. The existence of these different names does not differentiate the
understanding contained therein. Specifically for United States, its application only applies to
business information.
Trade secrets as part of the Intellectual Property Rights system should be given protection
as other IPR objects. The protection of trade secrets is regulated in Law No. 30 of 2000
concerning Trade Secrets. Trade Secrets developing following industrialization and a culture
that is competitive and individualistic. Trade secrets in western societies are considered as
"private rights" because trade secrets are not protected trade secrets are the product of human
intellect that has sacrificed a great deal of thought, energy, and money. Eastern culture, on the
other hand, considers trade secrets as "public rights" which are common property. This
difference does not support the protection of trade secrets in general.
The conception of trade secrets was recognized by the Chinese around 3000 years BC.
This can be known from the legend of the Chinese people who titled Princess Hsi-Ling-Shih,
the wife of the yellow emperor as the Goddess of Silk. At the beginning of each spring, the
Princess presided over a silk-making ceremony. The secrecy of silk-making techniques and
processes was strictly guarded by the royal court. Anyone who revealed the secret or
smuggled silkworm cocoons or eggs out of China would be put to death. They kept the secret
for more than 2000 years afterward.
The earliest cases of trade secrets occurred in the UK around the 18th century, involving
the secret prescription of medicines in relation to business competition. In America in the
early 19th century trade secret laws accommodated business secrets, competition, technology
and work management patterns. The US adopted the trade secret issue from the English
common law which involved protection through doctrines created by judges through
jurisprudence in trade secret cases Article 1 paragraph (1) of Law No. IX 30 Year 2000 on
Trade Secrets defines Trade Secrets as information:
in technology or business;
not publicly known;
has economic value because it is useful in business activities,
and kept confidential by the owner of the trade secret.
From this definition, two important things can be known, namely information that is
confidential and not known to the public. Concept of Trade Secret Protection
Trade Secret is a complicated IPR problem, especially in terms of enforcement. The
concept of protection of trade secret rights as well as other intellectual property rights is to
protect property rights from the actions of others who use them without rights. As
we know that trade secrets are information that is not known in general or is known in a
limited way by certain parties about matters relating to trade. This trade information needs to
be protected because:
morally reward the discovering party;
materially incentivize.
Trade secret protection is granted when information is considered confidential.
Confidential means information that is not generally known. Information is considered
confidential if the owner or the parties who control it have taken reasonable and appropriate
steps. Decent and appropriate are all steps that contain a measure of reasonableness,
feasibility and appropriateness that must be taken. For example, in a company there is a
standard procedure for storing confidential archives. There is a confidentiality agreement
signed by employees when the initial acceptance of employees or workers who work in the
confidential environment is operationalized so that the secret is truly protected.
Scope of Trade Secrets
The subject of a trade secret is the owner of the trade secret. The owner of the trade secret has
the right to :
Self-use of Trade Secrets in its possession;
Licensing others or prohibiting others from using the Trade Secret or disclosing the Trade
Secret to third parties for commercial purposes.
Object of trade secret scope
According to Law No. 30 Year 2000 Article 2, trade secrets include production methods,
processing methods, sales methods or other information in the field of technology and/or
business that has economic value and is not known by the general public. For example, Coca-
cola uses trade secrets, namely compound engineering information, to protect its formula, not
patents. This is to avoid the time limit. If the formula is protected by a patent, it will expire in
a maximum of 20 years. Currently, Coca Cola is more than 100 years old, and this is because
the formula is protected by trade secrets. Production methods, such as wine processing
technology, smoking herb formulas. In other fields, for example, non-technical information.
Data about customers, analysis data, financial administration, etc.
The right to Trade Secrets, like other intellectual property rights, is an intangible movable
property and therefore can be transferred or assigned:
Inheritance
Grant
Testament
Written agreement or
Other reasons justified by the laws and regulations Transfer of Trade Secret Rights shall be
registered with the Directorate General of Intellectual Property Rights. A license is a
permission granted by the holder of Trade Secret Rights to another party through an
agreement based on the purchase of rights (permission) to enjoy the economic benefits of a
trade secret that is given protection within a certain period of time and certain conditions. The
agreement to grant a license/permission to another party to use the Trade Secret or to disclose
the Trade Secret for commercial purposes must be made in written and registered/registered
at the Directorate General of IPR. License agreements are prohibited from containing
provisions that may harm the economy in United States or that result in unfair business
competition as stipulated in the applicable laws and regulations.
The Trade Secret Right Owner or the licensee may sue anyone who intentionally and
without right commits acts as stipulated in Article 4, namely using the trade secret and or
licensing it to others, or disclosing the trade secret to third parties for commercial purposes
with a lawsuit for damages and or requesting the cessation of acts carried out in accordance
with Article 4 This lawsuit is filed in the District Court, with a maximum penalty of 2 years
imprisonment and or a maximum fine of Rp 300,000,000 (three hundred million rupiah). The
crime of Trade Secrets is a complaint offense.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
Confidential Information
Confidential information for a company is all information relating to the company that is
very valuable and should not be known by other companies, especially rival companies
(competitors). The confidentiality of information can and must be guaranteed, as long as the
information has not been opened to the public or in other words has not been published and
still maintained confidentiality by the owner. The company in this case is engaged in a
commercial trade business, so that confidential information from the company is referred to
as trade secrets.
Information that can be protected as a trade secret, among others, is information that falls
under the following criteria as The following criteria: The information is confidential, has
economic value, and is kept confidential through appropriate efforts. The information is only
known by certain parties or is not generally known by the public.
Information that is considered to have economic value is if the information can be used to
carry out commercial activities or businesses or can increase economic benefits;
The information is in the field of technology and/or business. What is meant by
"reasonable efforts" are all efforts based on measures of reasonableness, feasibility, and
propriety that must be made in protecting the confidentiality of the information. For example,
a company's internal regulations may specify how trade secrets are maintained and who is
responsible for confidentiality. In addition to the above criteria, things The following can be
classified as trade secrets, among others:
The formula of a product is complex, difficult to analyze, complicated manufacturing
techniques and be excellence of the manufacturer. Such as pharmaceutical factories,
semiconductor factories, soft drinks etc. Information about Information about the company's
strategy, production line, marketing plan and other important information that can affect the
stock price of a public company if it is publicly known analysis, customer data, etc.
Complete information on the design of a building or machine construction, construction
methods, etc. The experience and special skills of an expert acquired within the company
may also be considered valuable or confidential information if it is declared by the company
concerned. Computer programs developed specifically for a company's application.
Definition and regulation of employment agreements
The absence of laws and regulations that explicitly regulate the agreement between
workers and employers on the obligation to maintain the trade secrets of the company where
they work, either in Law No. 30 of 2000 on Trade Secrets (Trade Secrets Law), laws and
regulations in the field of labor, Law No. 5 of 1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition (Anti Monopoly Law), as well as in the Civil
Code (KUHPerdata) and Criminal Code (KUHP), does not mean that there is no regulation
on this matter. In practice, agreements regarding trade secrets are regulated in work
agreements between workers and employers.
Employment relationship occurs due to an agreement between employers and employees.
Work agreements are made orally and/or in writing. Work agreements that are required to be
in writing are executed in accordance with the provisions of the applicable laws and
regulations. Work agreements are made on the basis of :
free will of both parties;
capabilities or ability both parties;
the existence of the contracted work;
The work agreed upon does not conflict with public order, decency, and the provisions of
applicable laws and regulations.
A labor agreement made in writing shall at least contain the following information:
name, company address, and type of business;
names and addresses of workers;
job title or type of work;
working conditions that contain the rights and obligations of employers and workers;
the amount of wages and the method of payment;
place of work;
entry into force of the employment agreement;
the place and date the employment agreement was made;
sign signature the parties in the employment agreement.
Employment agreement is one of the agreements to perform work as referred to in Article
1601 of the Civil Code. As an agreement that has special characteristics (i.e. regarding
employment), in principle, employment agreements are also agreements so that as far as
general provisions are concerned, general provisions apply to employment agreements.
An employment agreement is a dwang contract because the parties cannot determine their
own wishes in agreements as is appropriate in the law of engagement known as "freedom of
contract" as stated in Article 1338 of the Civil Code. With the existence of an employment
agreement, the parties entering into the agreement have a legal relationship called
employment relationship, and since then those who enter into an employment agreement
apply labor law.
However, this does not mean that other agreements cannot be made between employers
and their workers which can then be outlined in the employment agreement. The principle of
freedom of contract can still apply to the extent that it does not conflict with the
heteronomous rules in labor law, in other words, it does not conflict with the laws and
regulations in the field of labor stipulated by the government. The elements that must exist in
a work agreement specified in the laws and regulations (heteronomous rules) include:
The existence of work, which is an achievement that must be carried out by the work
recipient himself, and may not be transferred to another party (individual).
The existence of elements under orders, where with the employment relationship that is
formed, a relationship of subordination is also created between the employer and the
work recipient.
The existence of a certain wage, which is a reward for the work performed by the work
recipient which can be in the form of money or non-money (in natura).
The existence of time, namely the existence of a time to perform the work in question or
the length of time the worker performs the work provided by the employer. In addition to
the above elements, it is possible for other agreements to be made based on the
agreement of both parties regarding other matters deemed necessary as long as they do
not conflict with the prevailing laws and regulations.
In various laws and regulations in the field of labor, there is no provision that prohibits
the existence of an agreement to maintain the confidentiality of information owned by a
company. Finally, it can be concluded that with the agreement between Employers and their
employees that give rise to obligations for their employees to maintain the confidentiality of
the information of the company where they work (trade secrets of the company) are not
contrary to the prevailing laws and regulations and can be done by employers in order to
protect their valuable information.
The Relationship Between Trade Secrets and Employment Agreements
A laborer has an obligation to his or her company to maintain the company's trade secrets.
The way the company manages and controls the company's confidential information greatly
affects how the workers will maintain the confidentiality of the information. One of the first
steps taken by employers in protecting their company's trade secrets is by making
arrangements in the employment agreement with their employees. An information
confidentiality agreement usually contains the following matters:
What constitutes confidential information and the reasons for confidentiality
To whom the information is given and why it is given
What to do and what not to do with the information.
When information is considered misused or breached
When information is considered no longer confidential (released). Usually knowledge,
skills, or mental abilities acquired by a laborer in the old company where he/she
previously worked are not considered confidential information and may be used or
applied in the new workplace. But there is a point to note, which is that workers can use
confidential information from the company where they worked as long as they do not
violate the confidentiality agreement they have made with the company that owns the
information the secret.
The Position of Trade Secrets and Employment Agreements
Trade secrets are basically falls within the scope of civil law that regulates relationships
between individuals regarding trade secrets, with third parties related to information.
Similarly, employment agreements are actually included in civil law because there is an
element of agreement that is regulated in the scope of civil law. However, it cannot be denied
that both trade secrets and employment agreements actually also have aspect public because
the existence of the principle to protect the interests of the business world and the world of
labor in general. Thus in in terms of sanctions by the state against trade secret violations
faced with criminal threats in addition to civil sanctions in the form of compensation for
violations of trade secrets.
The provisions on trade secret infringement are regulated in Chapter VII Article 13,
Article 14, and Article 15 of the Trade Secrets Law. Article 13 states: "A breach of trade
secret may also occur if a person intentionally discloses a trade secret, reneges on an
agreement or denies a written or unwritten obligation to maintain the trade secret in question.
"Based on these provisions, a trade secret violation is deemed to have occurred if there is a
person who intentionally discloses information or reneges on an agreement or reneges on an
obligation (default) on an agreement that has been made either expressly or implicitly to
maintain the trade secret in question.
A person is deemed to have infringed another person's trade secret if he or she acquires or
controls the trade secret in a manner that is contrary to applicable laws and regulations.
Exceptions to this trade secret infringement provision are provided for the disclosure or use
of trade secrets that are based on the interest of defense security, health and safety of the
public, in addition to the re-engineering of products resulting from the use of trade secrets
belonging to others which are carried out solely for the purpose of further development of the
product concerned.
The provision on exceptions to trade secret infringement should also be complemented by
a provision that expressly regulates the disclosure of trade secrets by a person in front of a
court hearing on the order of a judge. A person who discloses a trade secret in front of a court
should also be established as an exception so that the person concerned is not considered to
have committed a trade secret violation.
The provision of Article 18 on the possibility of closed court sessions related to trade
secrets (at the request of the parties to the dispute) also does not expressly or impliedly intend
to regulate the above exceptions. In labor matters, if a worker commits a trade secret
violation, the legal remedies that can be taken by the owner of the trade secret (employer)
include through the general judicial institution either civil or criminal, through arbitration, or
using alternative dispute resolution.
When going through the public courts, employers may first file civil charges, and if
unsuccessful, then file criminal charges. In addition, the parties can apply to the court for the
trial to be conducted in private. Civilly, workers can be charged with default (if they are still
working at the trade secret owner's premises) or tort. The legal basis for prosecuting default is
the clause of the agreement regarding the obligation to protect trade secrets trade contained in
the employment agreement. The agreement clause can be the legal basis for prosecution
based on Article 1338 of the Civil Code which states that all agreements made legally shall
apply as laws for those who make them. As for unlawful acts, the legal basis is article 1365 of
the Civil Code. Prosecution on the basis of default is easier in terms of proof than tort
because it is based on a work agreement that contains trade secrets. Criminally, claims can be
made under the Trade Secrets Act and the Criminal Code (KUHP). Claims that can be made
under the Trade Secrets Act, the legal basis is Article 13 and Article 17 (1), which is
punishable by imprisonment for a maximum of 2 years and / or a maximum fine of Rp.
300,000,000, - (three hundred million rupiah). For trade secret violations under Law No.
30/2000 on Trade Secrets, charges can only be brought if there is a complaint from the
aggrieved party (Article 17(2)). Thus, trade secret infringement is a complaint offense.
Violation of trade secrets in the Criminal Code falls into the scope of crime. The legal
basis used is Article 322 paragraph 1 of the Criminal Code which states that a person who
intentionally discloses a secret that he is obliged to keep because of his position or
occupation, whether current or former, is punishable by a maximum imprisonment of 9
months or a maximum fine of nine thousand rupiahs. If the trade secret violation is
committed after the worker is no longer working in the company and he is at a time when he
still has to keep the trade secret, the provisions in the Criminal Code that are used are no
longer article 322 paragraph 1, but use article 323 Paragraph 1 states that any person who
with deliberate intent discloses particulars of a trade, craft or agricultural enterprise in which
he is or was employed, which should be kept secret, shall be punished by a maximum
imprisonment of nine months or a maximum fine of nine thousand rupiahs.
Article 323 paragraph 2 also requires a complaint from the employer to be able to file
charges (offense of complaint). Looking at the laws and regulations in the field of labor, the
violation of trade secrets committed by workers can also refer to the Decree of the Minister of
Manpower of the Republic of United States (KepmenTK) No. 150/Men/2000 dated June 20,
2000. In the Kepmen. TK in article 18 paragraph 1 (j), it is stated that workers who reveal or
divulge company secrets or defame employers and/or employers' families that should be kept
confidential except for the interests of the state, may be given permission to employers to
terminate employment (PHK) against the worker. This layoff permit is granted by the
Regional P4 (Committee for Settlement of Labor Disputes) for individual layoffs or the
Central P4 for mass layoffs.
Conclusions
Trade secrets are information that is not generally known or known only to certain parties
about trade-related matters. This trade information needs to be protected because:
morally reward the discovering party;
materially incentivize.
The occurrence of disclosure information owned by one party to another party without
being known by the owner of the information can cause harm to the owner of the
information. Owner information the owner of the information. Information disclosure can be
done by the workforce of the information owner. The way the company in managing and
control company's confidential information greatly affects how its workers will maintain the
confidentiality of such information. One of the first steps that can be taken by employers in
protecting their company's trade secrets is by making arrangements in employment
agreements with their workers. It is clear that there is a relationship between trade secrets and
labor.
