| The non-competition system in our country has not yet formed a complete legal system,the premise of labor law in the rule of law is the legislation,especially the good law comes first,and the existing regulations on non-competition system have many problems,which have a material impact on the justice and safeguard of the workers' rights.This paper is composed of four parts.Part One introduces the basic facts of the selected case and makes comprehensive comments on the case.Part Two mainly discusses the premise for the stipulation on non-competition between the employing unit and the workers.This part proposes that the commercial secrets actually owned by the employing unit which are worth protection shall be taken as the basic premise on the stipulation on non-competition.In combination with the relevant provisions on commercial secrets in the anti-unfair competition law,this part proposes the specific identification standards for the non-competition on commercial secrets.Owing to the fact that information property of commercial secrets results in their easy confusion with the workers' basic experience and skills,this part proposes to distinguish the two and on the basis of the basic standpoint of balancing the interests of the employer and the employee while inclining to protect the workers,this part holds that the workers' basic experience and skills gathered in the career process belong to their right of personality,which shall not be restricted by the employing unit.Part Three makes specific analysis on the scope of the personnel to which the noncompetition is applicable.As far as the abuse of non-competition is concerned,this part holds that the scope of the personnel to which the non-competition is applicable shall be strictly restricted and specifically analyzes specific forms of three types of personnel in practice stipulated by the law.In addition,this part analyzes the cases of the disputes over noncompetition in Jiangsu province in 2014 and reviews the specific types and scope in practice of “other personnel with a confidentiality obligation” which are not explicitly stipulated by the law by the way of statistic analysis.Part Four discusses the economic compensation for non-competition and the influence of the revocation of the labor contract on the validity of non-competition agreement.As for the validity of non-competition agreement without the stipulation on economic compensation for non-competition,this part begins with the value function carried by economic compensation for non-competition and the fairness principle of the contract and holds that only when this kind of non-competition agreement shall be held invalid may the basic principle of inclining to protect the workers of the labor law not be violated.As for the practice of the Supreme People's Court that all non-competition agreement remains valid after the revocation of the labor contract without distinguishing the specific situations for the revocation of the labor contract,this part holds that a fault rule shall be constructed according to the reasons for the revocation of the labor contract,in which the fault party for the revocation of the labor contract shall be liable for the adverse consequences of the non-competition agreement.This paper specifically analyzes the different rules for the validity of the non-competition agreement in the case of the agreed revocation by the two parties,the unilateral revocation by the workers and the unilateral revocation by the employing unit.Part Five begins with the case cited by this paper and reviews the handlings of the disputes over non-competition in practice.This part detects that there are numerous obstacles in the settlement mechanism for the disputes over non-competition and the tendency of the criminalization of dispute solution means,making institutional functions of non-competition impracticable.Therefore,in order to actually implement the system for non-competition,it is not only required to improve the system for non-competition itself but also to provide efficient and reasonable mechanism to settle disputes. |
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