Research On Non-compete Legal System

No matter in China or in other countries, non-compete activity has a long history and the relevant legal norms are still in the process of continuous development.In terms of non-compete, many countries have related legislation such as some terms in Company Law, Labor Contract Law, etc. However, despite it is not lack of related laws and regulations, there are many important questions to be resolved as to the founction, the legal basis, the regulating types, and the latest development of the non-compete legal system for the reason of the legal system running status in practice and the related issues in theory. In order to improve the legal system of non-competition in China and make the system more reasonably and swimmingly, based on existing law, this paper is divided into five chapters to go into some important and controversial issues of non-compete legal system and give the corresponding views and suggestions.Chaper One is the functions of non-compete: real demands behind the system supply. From the perspective of real demands, the author inspects the aims and functions of non-competition legislations. The author believes that the current mainstream view that the central function of non-compete regulations is to equally protect the business secret rights and the labor rights is not very comprehensive and accurate. In addition, such point of view cannot respond to the reality that why some people who do not grasp the business secret may also shall perform the non-compete obligation.On this basis, this paper holds that the functions of non-compete legal system can be summarized as three aspects, maintaining competitive advantage, protecting business secrets, and prohibiting improper restrictions on freedom of choosing a career. Maintaining competitive advantage is the root cause of the non-compete system. Protecting business secrets is the core target of the modern non-compete system. Prohibiting improper restrictions on freedom of choosing a career is the important task of the modern non-compete system.Chaper Two is the jurisprudence of non-compete system: analysis for the business secret. Because of the function of non-compete system mentioned befeore, many scholars think that whether can the legal system of non-competition solve the conflict of the business secret rights and the freedom rights of choosing career or not will decide the rationality of such legal system. The author cannot support this point of view. But what is undeniable is that the commercial secret and the related legal theory is unavoidable and crucial research topic of non-compete legal system, and it is lack of such research in the exiting study. By defining business secret rights and analyzing the theory of rights conflict, there do not exist rights conflict between the business secret rights and freedom right of choosing a career according to the effective laws in China. The nature of business secret rights is a property, but it contains not only a single right, but also a rights collection including the right of claim as to asking the emloyee for not competing with the ex-employer, and such right of claim is legal in the effective law in China. That is to say, as long as the procedure and the content of exercising such right of claim is legal, thus the restriction on freedom of choosing a career is reasonable. The business secret rights and freedom right of choosing a career do not exist conflict.Chaper Three is the statutory non-compete system: legalization the supplementary responsibility of contract. It is of immediate significance that the non-compete obligations are classified as legal duty and contractual obligation. Because the legal duty of non-compete is the legalization the supplementary responsibility of related contracts and the contractual obligation of non-compete is the main contract obligation, such two kinds of obligation shall apply to different regulations. In this chapter, the author compares the appointment relationship and the employment relationship which both are the basic relationship of non-compete relationship. By using the loyalty relationship theory and studying the comparative laws, the author finds that the mainstream view that ordinary employees should perform the legal duty of non-compete is not correct according to the effective laws in China. The ordinary employees do not belong to the subject scope of the people who should fulfill the legal duty of non-compete. If there is no non-compete agreement between the employer and the employee, the employer has no right to ask the employee to fulfill the non-compete obligation.Chaper Fore is the contractual non-compete system: regulations for realizing the giving balance. By analyzing the purpose of the parties who signed the departure non-compete agreement, related laws in China have basically achieved the aim on equilibrium of the interests of the parties. Through compressing the consensus space of non-compete contract, labor standard law and the collective agreement can prevent the employer from issuing the offer of non-compete contract to the employee optionally by taking advantage the powerful position. In addition, though judging the effect of non-compete contract and correcting the content of non-compete contract according to labor standard law and the collective agreement, afterwards the court will make a relatively correct judgement on the fact that wether or not the employer abused his own powerful position in negotiation for signing a non-compete contract, and will guarantee the purpose of the non-compete contract to be achieved properly. Therefore the point of view that judging the non-compete contract ineffectively is the most efficient tool used for preventing and forbidding the non-compete to be abused is illogical and illegal.Chaper Five is the future of the non-compete legal system: reference and suggestions. The non-compete injunction regulations and the Garden-leave regulations are the latest and important content of the non-compete legal system in comparative law. Both the non-compete injunction regulations and the Garden-leave regulations are the preventative methods for protecting the business secret. By introducing and anlyzing such regulations in this chapter, the author thinks that the preservation of act in the civil procedural law and the period of breaking away from the secret has similarity with the non-compete injunction regulations and the Garden-leave regulations. Thus there exists necessity and feasibility to reference. In addition, through improving the regulations regarding the preservation of act in the civil procedural law and the period of breaking away from the secret, Chinese non-compete legal system can be perfected, and then the functions of the non-compete legal system can also be achieved much more effectively.