Study On Post-employment Restraint In Labor Law

Prohibition of business strife is an important legal system in nations to coordinate the interests and rights of various business parties, and to obstruct the unruly competition. Based on incurring time, it can be defined as ex-employment restraint and post-employment restraint. However, in the research, post-employment restraint is the only researching target. This article referred to as the post-employment restraint, which means it is aware of its commercial secrets staff relations based on the original labor contract at a certain period of time after termination of employment, the employer shall not engage in the original there is competition between the job. With the increasingly close economic exchanges and the flow of talents in great number, post-employment restraint begins to play an important role in China's market economy.Because of the post--employment restraint system (PERS) in the protection of corporate trade secrets, while at the same time against the workers on the work of the constitutional right to liberty and the right to life. Therefore, to leave the validity of post-employment restraint agreement has become a focus of the question, in essence, it's the business conflicts of the employee's labor rights and the right to freedom and the property rights of corporate. Legal from the benefits of enterprise point of view, to allow its employees signed post-employment restraint terms. At the same time, in order to prevent the abuse of this right, violations of labor rights of employees, also give a lot of restrictions on post-employment restraint. In this paper, from the analysis of the basic theory of post-employment restraint, then on the basis of the legislation in force on some representation countries and related regions. Departure from China's post-employment restraint provisions from existing legislation, to interpret inadequate legislation of post-employment restraint, meanwhile it gives some legislative proposals to improve the PERS system.This thesis is divided into four chapters:In chapter one, it is the basic question on post-employment restraint. In the first, the thesis shed on the concept and type of employment restraint system. Based on incurring time, it can be divided into ex-employment restraint and post-employment restraint. Then, it explains what is the post-employment restraint system and the legal characteristic, moreover it also analyses the relationship and differences between post-employment restraint system and related concepts. At last, it is an analysis of theoretical foundation of post-employment restraint system in economics is reasonable and feasible; Honest and trustworthy principle and the principle of judicial autonomy are possessed of legal foundation.Chapter two shed light on the two major law system regulations about post-employment restraint system. First it is introduced the legal regulations of post-employment restraint among the countries representing British and American law system. Then it is introduced the legal regulations of post-employment restraint among the countries representing the continental law system and Taiwan.Chapter three are the post-employment restraint legislation and its deficiency. First of all, it shed light on the legislation of post-employment restraint. And then, analysis of the current legislation's deficiency. A concrete manifestation of the following points: the field for the separation of the post-employment restraint provision is too broad; the post-employment restraint period is too general; for geographical separation of the post-employment restraint provision is too vague; for the amount of compensation does not specify the standards; for payment of liquidated damages employees could waive their separation is not clear.Chapter four is the improvement of post-employment restraint legislation. First of all, the analysis of the establishment for post-employment restraint legislation. When we construct the post-employment restraint regulation , a selection dilemma is inevitable, that is, between the autonomy of employee in jobs by the free movement of the rights and the protection of legitimate rights and interests of enterprises of great contradictions. In the contradiction, between the two point, it should be found a balance, which is the important task to build the post-employment restraint system. Therefore, in the post-employment restraint, the "reasonable" should be the value of legislation and runs through the whole process of design of the system. And then improve the suggestion of post-employment restraint. From our country's the system of legislative intent and reasonable restraint positioning, the main constraints, the field restrictions, deadline constraints, geographical constraints, the compensation provisions such as liquidated damages provisions of the proposal. First, the legislative intent and reasonable position. Combined with the actual situation in our country, for our country enterprises, commercial enterprises protect the secret purpose of restraint is still the most secure way. Second, the rationalization of the main constraints. post-employment restraint obligation should be the main key for the company's staff from five categories: the stuff of advanced research and development of enterprises, the stuff of technical research and development, marketing plans and sales staff, clerical staff, staff of the important management positions. Third, the deadline for rendering the restrictions. Should be accorded to the secret nature of the industry status, the status of individual employees, trade secrets, such as the existence of circumstances during the specified time. Fourth, the field of rendering the restrictions. Our country can learn from the common practice in developed countries, through technology, products, services, limited acts to restrict employment restraint sphere. Fifth, the rationalization of regional restrictions. the problem of employment restraint region , legal provisions should be made a matter of principle, that should be required to:scope to the employing units and be able to compete with the formation of the actual geographical limit Sixth, the rationalization of compensation provided. Economic compensation for a specific amount on specific operations, refers to the wages of employees working at the level of the employing units to the commercial secret of the economic benefits, limiting the scope of geographical restrictions to limit the period and the average standard of living of the society to enhance the prospects for such factors as general determine. Seventh, the rationalization of liquidated damages provisions. The law may provide, when less than the agreed liquidated damages resulting from loss, the parties may request the people's court or arbitration body to increase it; when the agreed liquidated damages is higher than the losses caused by excessive, the parties may request the people's court or arbitration body to be appropriate reduction. Whether employees to pay liquidated damages from the non-compete obligations are not clearly defined in "Labor Contract Law" in our country. It is recommended to add the corresponding provisions. That is, under normal circumstances, the employees no longer have the burden of employment restraint obligations after payment of liquidated damages, but in exceptional circumstances, for the vital interests of the employer, it will require the employees continue to carry out non-competent obligations.