Study On Issue For Reasonable Restriction About Prohibition On Business Strife

Human society has entered into knowledge-based economy, the value of business secret as important as factory to company. Theft business secret even more harmful than the damage caused by arson destroyed the factory. However, due to the interest and abstract of business secret, the activity of encroaching business secret has occurred frequently, which greatly comes from the company's current and former employees. Restraint system of protecting business secret comes into being, one end of the system contains employee's labor rights, the right to freedom of choice and social public interests, the other end is the commercial interests of the enterprise, how to weigh the basis of multi-rights, protecting the balance of law to be just, which is the problem legislators need to address.The function of the law to balance the interests of all parties, as well as what market competition need is the coordination between freedom and order, which require protecting all kinds of legitimate rights at the same time. Restrict the rights of the business secret holder or owner, limit the agreement non-compete to assure the market fully free and fair. While the existence of non-compete agreement should be reasonable, but if the laws are not amended, it will cause that the prohibition focus on the interests of enterprises. Thus it is necessary to balance every interest, which refer to legislative and judicial experience of developed countries. In addition it is very necessary to restrict the secret owners' right. The existing legislations in our country have no special recognition and protection about business secret, not to mention the norms. The legislation of the restriction system in our country even be ignored, which scattered through the provisions of the "Anti-Unfair Competition Law" and labor regulations. The principle of restrictions on trade secret is: First, it should be for the limits of the law. Second, it should balance fairness and efficiency. Third, it should be helpful to scientific and technological progress, as well as protect social public interest. At the same time, in order to safeguard the others' right, the worker's right to employment, the right to life and social public interests, the rights of business secret should have a reasonable degree.Basing on the thinking of coordinating various interests, the article firstly analysis the theory of non-compete restrictions, followed by analysis of the developed countries, in particular, summed up the practice of the United States Attorney non-compete restrictions on the experience of a reasonable way. In the assessment of non-compete restrictions of our system, on how to improve our system of non-compete restrictions, to make recommendations to enhance its operability.Besides the introduction and the conclusion, the article is divided into four parts: Part one analyses the concept and legal characteristics of non-compete the basis of this theory gives rise to the concept and legal characteristics of non-compete restrictions.Part two firstly explores the theoretical foundation of non-compete restrictions briefly, including the fair value theory, agency cost theory, competition limited principles and the principle of good faith. Accordingly refine the theoretical foundation of non-compete for reasonable restrictions, including the protection of the public interest, prohibition of power abusing, regulation the allocation of resources and the achievement of equity and justice. And then, basing on the analysis of the restraint system in the value of goals, including protection of commercial ethics, encourage invention-creation and the protection of competition in order, into a restraint system and reasonable limitation of the core values of the target method is multi-party beneficial balance.Part three probes reasonable way about non-compete restriction, mainly from two aspects, restricting business secret and non-compete agreement to reasonable range. In regard the restriction of business secret, the main analysis objects are the judicial practice of the United States and Britain, also summed up some useful experience for us. In regard the non-compete agreement obligations, the outstanding analysis is about the jurisprudence of the United States practice, summing up the British judicial characteristics, which can inspire the advanced experience of China.Part four, first of all, summarize the legislative status about non-compete restrictions in our country. Secondly, propose the rational way of non-compete restriction, mainly for the shortage in "Labor Contract Law" , and then bring forward some suggestion.