Research On The Noncompete System In The Protection Of Business Secrets

The history and the reality indicate repeatedly that talented person's flow is the main way that business secrets lose. Along with the ending of the transition-period of WTO entry, our country economy will further integrate international market and talented persons will flow in a broader scope by a bigger scale and a higher frequency. As an important measure to protect business secrets, the noncompete system will also highlight its importance day by day. However, since the day of the noncompete system produced, it has continuously followed many disputes. At the same time, it is able to protect employer's business secrets well, and has rationality and necessity of existence; On the other hand, it has limited employee's right to work and to choose profession, and has certain side effects. Therefore, the noncompete system is a double-edged sword. In order to exert its positive role fully, we must try to seek an appropriate balance point between employer's power to protect business secrets and employee's right to work and to free choose profession. Even in west developed countries where the noncompete system has produced and developed from early time, there are great disputes regarding it. At present, people in our country haven't understood it fully. Some extant stipulations are scattered, and mainly can be seen in some department rules and regulations and the local laws and regulations. Opposite to the realistic demand, it lies at the lag condition.Firstly, the author proposes and proves that the noncompete system is the important measure to protect business secrets; Then, the author analyzes domestic and foreign legislation and the judicial practice about the noncompete system, and discusses its rationale, basic principles and concrete contents; Finally, the author experimentally discusses the application of the noncompete system to the jail enterprises, and proposes legislative and judicial suggestions for completing the noncompete system in our country.This paper can divide into five parts except the introduction and the conclusion.First chapter: generalization of the noncompete system in our country business secrets protection. This chapter refers to the protection of business secrets at first. Here, the author points out that the noncompete system is an important measure to protect business secrets in the talented person's flow and analyzes advantages and existent disputes of the noncompete system in the protection of business secrets.The Second chapter: research of the noncompete system based on the comparison law. This chapter utilizes the comparison method to study domestic and foreign noncompete system, on the chance of understanding it comprehensively, and provides the model and the reference for consummation our country noncompete system.The third chapter: rationale and basic principles of establishment the noncompete system. The author discusses the rationale and the basic principles of establishment the noncompete system using methods of the law philosophy and the law economics, proves its rationality and necessity from multiple perspectives of the pragmatism theory, the loyal voluntary theory, the contract theory, the inevitable revelation, and the use theory, and points out that the benefit balance principle and the social overall benefit maximization principle are its basic principles.The fourth chapter: concrete contents of noncompete system in protection of business secrets. On the foundation of above comparison research and theoretical analysis, the author discusses how to distinguish scientifically the agreement noncompete and legal noncompete as well as how to judge validity and rationality of the noncompete contract the practice how judges competes industry the prohibition contract and introduces the legal relief system for violating the noncompete system, on the chance of instructing application of the noncompete system in reality.The fifth chapter: the noncompete system and the jail enterprise as well as consummation of our country noncompete system. Unified the reality of jail enterprises, the author discusses concrete application of the noncompete system in jail enterprises from the aspects of its characteristic, present situation, trend of development as well as rationale, legislation principles and so on, and proposes legislative and judicial suggestions to consummate our country noncompete system.