Legal Regulations On Prohibition Of Business Strife

Prohibiton of Business Strife is a legal system which enterprise uses to limit employee's working right and the right to freedom of occupation. Prohibiton of business strife in order to maintain a fair competition order and protect the legitimate rights and interests of enterprises and the right of employees have played a decisive role.The first part is about the value of the legal regulations on Prohibiton of Business Strife. This system has been widely used in developed countries. along with our country's economic development, Prohibiton of business strife is introduced gradually, and it is used in business more and more. But at the same time because the system itself is not very mature and it was not a good convergence in the process of introduction, there are many defects in the relevant legislation, its abuse have become increasingly frequent phenomenon. Some enterprises in their own interest signed the relevant provision with employees by regardless of object and time and location. It has seriously harmed the legitimate rights of employee and prevent the normal flow of talent and limit the development of advanced technology and exchanges, and at last make the socio-economic tied up. Therefore legal regulation for Prohibiton of business strife is necessary.The second part is about drawing on foreign law. Prohibiton of business strife is the legal system from the West. We can also approach the light of some of the advanced Western Countries to improve our system. In common-law system countries, prohibiton of business strife are developed from the case. They make it more reasonable and complete by trialing of the case. Virtually all civil-law system countries stipulate statutory Prohibiton of business strife with directors and managers. And promissory prohibiton of business strife is not perfect, but they also admit this system and demand to limit reasonably. China is also a civil-law system countries, the regulatory system is also recognized on the basis of principles and ideas of our regulatory system.The third part is about the principles of the legal regulations. After established guidelines and ideas, regulations also need to abide by certain principles. Only as a guide to the basic principles that regulation can be a good grasp of the direction. At first, it must adhere to the principles of good faith doctrine. Prohibition law principle of good faith is the cornerstone of regulation theory, it can balance the conflict of interest regulation. Meanwhile Prohibiton of business strife can promote to realize the principle of good faith. Second, we must persist the principle of acctonomy of the will and public order and good conversation,parity of power and responsibility.The last part is designs of the legal regulations. In concrete measures ,we can regulate from subject, the main purpose, location, industry, period, the amount of compensation, legal responsibility .At first, not only directors, managers, partners and other senior management, but also supervisors, shareholders almost all the senior management staff are subjects of the statutory prohibiton of business strife. And for promissory prohibiton of business strife, the subject is not any worker, it must be distinguished. The subjects are the part of workers who master the company's business secret. It include senior research fellows, management personnel, the general technical personnel and skilled workers in key posts, accounting, market planning and sales staff and secretarial staff. Secondly, we must emphasize the intention reasonable. In general, whether the subjective purpose is reasonable, we can judgment from two areas: First, from the perspective of enterprises, it must have a need to protect the legitimate interests within a reasonable scope of protection; From the perspective of workers, prohibition of the contract shall be without prejudice to the survival of workers, such as the right to free choice. In particular, the aim is mainly to protect the legitimate and reasonable interests, it is mainly business secrets. This secrets must be real and indeed and have value to protect. Third, we should have a geographic and industry restrictions. Generally speaking, the prohibition of the area should be limited in which the products or services mainly to flow. This means that the competition could bring a real, substantive obstruct or endanger to the region. It should not include or touch on the region's untapped, or despite touching the minimal sales of the brand or the product occupy a little position. The trade should be limited in the scope which the employees can contact or possiblely contact. General shall conduct should be limited to work in the same company as the former company. The forth, we should have a proper time limit. There is a concrete and proper standard which has many parts. It include how length the time of the secrets keeping a good competition is, and how the employee's level of mastering the secrets, and how the skill level of the employees. At last, we should look upon the quality and type of the secrets. So we can say in a general trade, it need one year or two years after employees take leave; In the hi-tech field is generally not exceed one year; and it is not necessary or the commercial secrets to fix some special fixed time. The fifth, compensate should refer to employees'income, in addition it should refer to the interests of business secret for company and the time of prohibition and the region of prohibition. The amount can be half or two-thirds of the total wage, and it cann't be lower than the minimum living. The sixth is legal responsibility. No matter who violate the agreement of Prohibiton of business strife, he must according to the agreement to bear the responsibility. And the breach of contact damages should be proper. The judge can according to equitable principles to reduce the amount if it is too high. At the same time the enterprises can demand the employees who violate the agreement to stop encroaching on their interest and pay for the lose.Therefore legal regulation of Prohibiton of business strife have too many aspects. It demand to limit explicitly on legislative level, and the most important is that it can be compliance in practice. I hope that these suggestions can have a little effect in making Prohibiton of business strife much perfecter.