NEFICACIA PROCESAL DEL DELITO DE VIOLACIÓN DE SECRETOS INDUSTRIALES

Resumen

In the context socio-economic that develops in the business activity. Subscribed a situation recurrent of inefficiency juridical on a legal concept referenced on the Intelectual Property Law, When the right-holder is protected of the Trade Secrets; However, does not exist an elective form to impute a penalty against to the person (s) who possess, use or reveal to no authorized form to the Trade Secrets. Since the typology established the crime aspects which are difficult to prove for themselves would be considered an aporia; preceding on that, it is necessary to prove the existence of the Trade Secrets, on a requirement to display on an investigation folder, and that involve to put on disposition within the accused and their defense. On the other hand, is necessary to show the perjury caused to the right-holder, a situation that is a logical contradiction because prove the perjury leads to display confidential information that in case of reveals would cause an injury to the owner´s assets and benefits competitors.

This article pretends to explain the causes for the crime by violating the Trade Secrets mentioned in The Property Law in Mexico, in their different modalities (revelation, appropriate, use), it results totally ineffective and contrary to the protection that on the same law grant to the owners of such secrets.

Based on the previous premise will be demonstrated in this research work, since the elements that contains the legal assumptions on criminal type related with the violations of the Secrets Trade, specially: a) display the Trade Secret, b) prove the economic benefit obtained by the active subject and c) demonstrated the injury caused to the owner of the Trade Secret. Those elements have a complex verification, the investigation folder and the own judicial file must be content of the confidential information of the illicit object, Since the Trade Secrets is the main object and the element of crime, which result a total aberration.

The previous established a categoric affirmation, based on the information provided by La Fiscalía General de la República. (before denominated Procuraduría General de la República), since the year 1991 to the year 2019, does not exist a convictions in a relation to the crimes provided in the sections IV, V and VI of the article 223 of the Industrial Property Law that have been established, hence the in effectivities of the trade secrets violation crime.

However, it I necessary to present the following question:

Is the prosecution of the crime of violation on the Trade Secrets (in their different modalities to use, appropriate and reveal) indicated in the Industrial Property Law?

Based on that question with the information and ensured by the Fiscalía General de la República according to the criminal proceeds related with the sections IV, V and VI of the article 223 of the Industrial Property Law, it is possible to conclude the procedural ineffectiveness of the violation´s crime of the trade secrets, this means since their incorporation on the Industrial Property Law, nevertheless the complains files as a result of the commission crime, on todays has not exist some convictions against to who had used, appropriated or reveled the Trade Secrets.

The affection suffered by the owner of the Trade Secret for use, appropriate and revelation of the Trade Secrets and Commercial, must be considered as serious, however, the normative regulation in the Industrial Property Law, It leaves the holders of Industrial Secrets vulnerable because there is no effective mechanism with the arrest and detention of the active subject is really achieved, much less to achieve the repair of the damage.