| "Made in China" to "Creative in China" industrial transformation and upgrading of the general trend.At present,the characteristics of industrial informatization and service are prominent,industry and informatization are highly integrated,and the personalized and service-oriented characteristics of industry are gradually highlighted.In the context of the knowledge economy,intellectual property has become an important intangible property of enterprises,trade secrets as an important type of intellectual property rights are increasingly being paid attention to by enterprises.Most of the trade secret disputes are caused by the departure of employees,and non-compete restriction as an important means to control the flow of employees and protect trade secrets.Since the flow of high-tech talent is of vital importance to enterprises,the number of non-compete dispute cases has been increasing year by year in recent years,and key words such as "big factory leaving + high breach of contract" have also attracted public attention.Non-compete originated in the common law system,and its development has gone through three periods.In the first stage,from the early 15 th century to the early18 th century,the attitude towards non-competition in judicial practice changed from negative to restricted recognition;in the second stage,as non-competition was gradually recognized in practice in the 18 th and 19 th centuries,a large number of cases of non-competition appeared in English courts.The Mitchel v.Reynolds case marked the gradual establishment of the principle of reasonable determination of non-competition.In the third stage,the 20 th century was the most important period for the development of non-competition in practice,during which the theory of non-competition was gradually improved.The theoretical development in this period mainly includes: human capital theory arguing the necessity of non-competition;market competition theory and protection of workers’ freedom rights arguing the reasonableness of non-competition,and a complete summary of the factors for agreeing to non-competition.In the fourth stage,from the end of the 20 th century to the present,the technological development in this period has gradually accelerated and made a breakthrough on the theory of non-competition,and the value of intangible assets in market competition has become more and more obvious,so the principle of unavoidable disclosure has been established in the theory,and the development of non-competition restriction from ex post relief to ex ante relief has been realized.On the other hand,the rapid development of the Internet industry has challenged the standard of reasonableness judgment in non-competition restrictions,and has had a significant impact on the agreement on the time and geographical restrictions of non-competition restrictions.This paper examines the historical evolution of the non-compete system,from typical cases to theoretical doctrines,and from the protection of rights and interests to the measurement of benefits.A multidisciplinary and multi-level approach is adopted to explore the issue of reasonable boundaries of non-compete.And in it,new issues arising in the current platform economy are combined with reflections on the important and difficult issues existing in the real judicial practice in order to explore solutions that can practically solve the practical difficulties.Chapter 1 is a definition of the topic before discussing the reasonable boundary of non-competition.In the first part,we clarify the concepts,classify the types and nature,and unify the relevant theoretical basics in order to unify the discourse system of the discussion.The second part clarifies the development of the issue of non-competition through the perspective of historical development,and prepares the ground for the subsequent consideration of the value and meaning behind the system change.Chapter 2 mainly analyzes the practical dilemma caused by the blurred boundary of non-competition restriction.The first part examines the current situation of non-competition restriction by means of empirical research study reports and other means.By sorting out the empirical research data,it clarifies the development trend of non-competition disputes in China and the current changing trend of non-competition cases.The second part explores the difficulties encountered in practice in the rules of the non-compete system and reflects on the reasons behind them by combining the conclusions of relevant white papers.The third part examines possible problems in the existing system through the examination of practical issues.Chapter 3 explores the essence of non-compete boundary delimitation and its difficulties.In the first section,the mechanism behind the operation of the non-compete system is discussed,in which the emergence of different levels of conflict of interests and the reasons for their creation are analyzed,and the requirements for achieving a balance of interests are discussed at the institutional level,the subject level,and the object level.In the second section,the essence of non-competition boundary delimitation is analyzed,i.e.,the resolution of conflicts between rights.It then clarifies the path to resolve the conflict of rights in non-competition,that is,it should lie in determining the value rank of the rights and judging the interests that should be protected in priority under the current situation.Then,we further analyze the premise of the conflict of rights in non-competition disputes,i.e.,the legitimacy of the rights.The basis of the legitimacy of the boundary of non-competition is clarified from three perspectives: ethics,economics,and jurisprudence.In the third part,the new situation is analyzed,mainly discussing the impact on non-competition due to the variation of labor relations caused by the platform economy.In the platform economy,non-competition should not be used when the platform enterprises with light assets and flexible workers enter into labor relations.This is because the new platform economy tends to weaken the subordination in labor relations,which brings a new challenge to the enforcement of non-competition.Chapter 4 clarifies the boundaries of non-competition from different perspectives,including three levels: the first level concerns the origin of the system,how to draw the reasonable boundaries of the non-competition system from the perspective of human capital theory;the second level concerns both parties,the key issues to be considered in drawing the reasonable boundaries of the non-competition system from the perspective of contract law;the third level concerns the social public interest,the reasonable boundaries of the non-competition system from the perspective of public interest.The third level concerns the social welfare,and the space that should be left in the reasonable boundary of the non-competition system from the perspective of public interest.Chapter 5,based on the results of the previous analysis,once again focuses on the current status of the current non-compete system in China.In terms of the design of the system,it focuses on the development trend of jurisprudence,that is,the shift from "identity to contract" to "identity plus contract",and the corresponding system design should also be refined and precise.In order to make up for the shortcomings of a single basic legal governance model,it is proposed to adopt a mixed model of soft law and hard law regulation in the basis of the non-competition system.The basic law focuses on the bottom line,emphasizing the prohibitions.In the design of the non-compete system,it is necessary to use the thinking method of classification discussion throughout the process.Specifically,it can be from the agreement itself.In the design of the non-compete system,the following specific considerations can be made in terms of the agreement itself,the protectable interests of the agreement and the public interest.According to the above-mentioned thinking,the following specific modifications are proposed.In terms of legislation,pay attention to the reasonable boundary of the non-competition system itself.First,it is clear that the nature of the non-competition agreement itself is an independent contract and should be distinguished from the application of the confidentiality contract;second,it is clear that the premise of the validity of the non-competition agreement is the existence of protectable interests,and the protectable commercial interests should not be limited to trade secrets,otherwise it cannot be applied in other new platforms;third,in terms of the basis of the non-competition system,the basic legislation,industry norms and judicial Third,in terms of the basis of the non-competition system,the issue of non-competition can be governed by basic legislation,industry norms and judicial guidelines.In terms of judicial practice,more attention is paid to the reasonable boundary of the design of non-competition agreements.That is,a single agreement focuses on the analysis of applicable scenarios.First,a reasonable review mechanism for the effectiveness of non-competition agreements is established in the judiciary,and the reasonableness of non-competition agreements is judged in steps;second,in enterprise practice and judicial trials,attention is paid to the judgment elements of the boundary delineation of non-competition agreements,paying attention to the industry and organizational structure of the employer and the type of workers.Specifically,according to the logical order of raising the problem,analyzing the problem,and then solving the problem,the article tries to propose.(1)The legal nature of non-competition agreements should be independent contracts with protectable interests and restricting competition.(2)The business interests protected by non-compete agreements should not be limited to trade secrets,otherwise they cannot be applied in other new platforms.(3)At the level of contract formation,attention should be paid to the point in time when the non-compete agreement is signed,distinguishing between "when signing,when leaving" and other situations.Consider the possible impact of this element on the case.(4)The personnel of the non-competition agreement should be further restricted.Firstly,we should pay attention to the new type of flexible employment subjects in terms of contract subjects.Second,further regulations should be made for the subject categories,such as low-paid employees,creative employees,and service employees,and non-compete regulations should be made separately.(5)When negotiating the temporal and spatial scope of the non-competition agreement and the scope of practice,the globalization of the economy and the influence of the Internet should be taken into account,and the one-to-one signing should be considered;in addition,the influence of the development of the mixed industry of the platform economy on the competitive relationship should be taken into account.(6)At the level of contract performance,pay attention to the consideration factor when formulating,and consider the evidence element when defending rights.(7)At the level of public interest,the principle of "unavoidable disclosure",which is a special system in foreign countries,should be introduced carefully,taking into account the market environment and human factors in China. |
