Study On The Legal Problems Of The Non-competition Agreement

Non-competition agreement is based on non-competition institution. Nowadays, most countries have established non-competition institution, so does China. However, China has not formed a complete legal system for taking a slow step in it. In the background of the rule of law, the Labor Law is facing new challenges and opportunities. The premise of the rule of law is on legislation, especially well-designed laws. However, the provisions of the current non-competition agreement still exist many problems and have had substantial influences on relevant judiciary and the protection of the employee’s rights.This thesis consists of four parts.The first part is the explanation of fundamental theories of non-competition agreement. The author is going to explain basic theoretical issues about restrictions on non-competition agreement and point out that the main subject of this paper is to discuss the competition restriction agreement after agreement and explain the titled protection is basic in settling disputes with non-competition agreement. This thesis also focuses on the legitimacy of the agreement of prohibition of business strife system in Labor Law, which is based on the unit for the protection of commercial secret and generation, is an important system to balance the workers living and development interests, and is a requirement of the construction of a harmonious and orderly labor market in accordance with the law.The second part mainly discusses the validity of non-competition agreement which does not stipulate restrictions on compensation. In this part, the author will take explain the theories of validity and invalidity and focus on the economic compensation for breach of contract which has not agreed on the price principle that a violation of this angle of contract law and equity of public order and good custom principle, to explain the theory of validity which the author is for. With the analysis of expounded invalid view, on the basis of the relevant legislation on the analysis, proposed only in the workers take the initiative to give up the restrictions on compensation under the condition of the non-competition agreement are binding point.The third part mainly discusses the validity of non-competition agreement after the employer illegally terminates the labor contract. In this part, the author mainly introduces two prevailing ideas, namely validity or invalidity. The author supports invalidity and will focus on it. The author thinks that the employer is dominant in the non-competition agreement, for the agreement is signed for the benefit of the employer. According to the imbalanced relationship between a labor contract and agreement of prohibition of business, the principle of good faith of Contract Law and tilted protection of Labor Law, if the employer is at fault or illegally to terminates the contract, such kind of non-competition agreement shall be invalid.The fourth part mainly discusses about whether the employer is authorized to demand the employee who breaches the non-competition agreement to fulfill his obligations. In this section, the author expounds mainly two kinds of views in practice-- should continue to perform and should not require the employee to continue to perform the agreement. Although the Labor Law originated from the Civil Law, from the view of the Civil Law,it is rightful to ask the party who breaches to perform, some rules of the Civil Law cannot apply to particular conditions for titled protection principle of the Labor Law. Therefore,the author thinks that it it wrong to ask the employee to perform under this condition.From the points of requiring the employee to fulfill the non-competition agreement breach of International Labor Organization for the prohibition of forced labor, the principle of non-competition agreement with personal attributes cannot continue to perform, the nature of the liquidated damages of non-competition agreement as well as foreign related legal inspection, the author finds out evidences to support the idea that cannot force the employee to perform the non-competition agreement.