This thesis is devoted to a comprehensive study of theoretical and practical aspects of confidentiality agreements in the civil law of Ukraine.
In the dissertation directions and the scope of use of the term “confidentiality” are studied both in doctrinal provisions of civil law and the current civil legislation of Ukraine, mainly in relation to information. It is substantiated that this approach is founded on the ideal character of some contents of legal reality which, to clearly understand their nature, acquire a linguistic form, and therefore become logical-liguistic phenomena used in the field of civil law in the form of information. The need to keep some circumstances of legal reality private (for example, some acts of conduct by participants in civil relations, events, legal facts, acts, conditions etc.) leads to establishing the legal regime of confidentiality of information (information being understood a set of some facts).
The author defines confidentiality as an attribute of circumstances of legal reality, in particular legally significant behavior of a person, events, legal facts, acts or conditions etc., as well as information about them, which consists in non-disclosure and concealing some relevant information or its limited dissemination and which is a result of the purposeful influence civil law remedies make on the conduct of those participating in civil relations.
In the paper the concept of «blind confidentiality» is formulated as such a regime of information within which the confidant in the confidentiality agreement is obliged not to take any action (not to systematize, not to provide to others, not to process etc) towards confidential information regarding certain circumstances of legal reality that was received in order to be preserved.
The dissertation reveals a theoretical understanding how the two legal regimes — confidentiality and professional secrecy — correlate. It is proved that information of similar content may at the same time be both a trade secret and confidential information if the person simultaneously has different legal connections regarding certain data with different professionals, public authorities, bodies of state power, municipality, their officials etc.
Different approaches to understanding confidentiality in civil law are examined. Confidentiality may definitely be viewed as some factual and legal property of information as an object of civil rights that has a special legal regime. It is determined in the paper that confidentiality in a factual sense means real secrecy of legal reality circumstances, while in a legal sense it means legal security of certain legal reality circumstances that is provided for by legal means. The legal regime of confidential information is a procedure for legal regulation of civil relations concerning information about circumstances of legal reality, while confidentiality as an object of confidentiality agreement is an aim that those who participate in civil relations want to reach by using necessary legal means.
The paper also deals with theoretical approaches to the scope of use of the terminological phrase “legal regime of confidential information”. Given that the lexical construction of the term “information with limited access” is somewhat outdated, in the context of terminological apparatus of civil law it may be replaced with the term “confidential information”. Taking into account the differentiation of information with limited access, carried out according to the provisions of the Part 1 of the Article 21 of the Law of Ukraine “On information”, into confidential, secret and restricted, the need for a broad and a narrow understanding of the legal regime of confidential information is justified. In a broad understanding this legal regime covers all these types of information with limited access, while in the narrow it covers only the confidential information itself.
Some of the theories on the content of informational civil relations are researched. The concept of “reverse confidentiality” as a legal regime of information is formulated which gives the principal under the confidentiality agreement an opportunity not to know certain information. It is determined that this legal regime is a “soft confidentiality”, as it is able to get preferential as a result of unilateral will of the principal on getting certain information.
