The Study On The System Of Prohibition Of Business Strife

With the increasing value of trade secrets,the behavior infringing upon the trade secrets increases also unceasingly ,its manifestation alters from day to day with illegitimate means, the legal protection of trade secrets has become the issue of common concern in the world community. In many tort means, the flow of talents has already become a main tort channel to initiate the outflow of trade secrets. Regarding this, the traditional protective measures of trade secrets have played its protective function truly with difficulty. In view of this, many western developed countries set up the system of prohibition of business strife(POBS) in their related law, and gradually performed in its legislation and judicial practice to consummate, to standardize and strengthen the protection of trade secrets in the flow of talents, and set up"an effective firewall"for the protection of trade secrets. The practice proved that this system has had the positive effective function to the protection of trade secrets.As an institutional arrangement for protecting trade secrets, the system of POBS must face the confliction among employer benefit, the employee benefit and the social benefit inevitably in the process of trade secrets'protection. How to balance and coordinate these conflictions, to limit the POBS into the scope of legitimate and reasonable, becomes an important topic which the legal science faces. This article carries out the preliminary study on the trade secrets'protection in the flow of talents and takes this as the starting point to focus on the relevant theoretical and practical issues of the system of POBS, to expect to do further research on the basis of absorbing and profiting from other people'research results .The first chapter of this article is the elementary theory and question research on trade secret, the flow of talents and POBS. In this chapter ,the author takes trade secrets'protection in the flow of talents as the starting point, first to define the concept and elements of trade secrets, and on this basis to explore the significance of the legal protection of trade secrets , after determining the flow of talents is the main channel to lead to the outflow of trade secrets, through to analyze the disadvantage of traditional protective measures of trade secrets ,the author has drawn out the key point which this article needed to discuss: the research on the system of POBS. In the next two sections, the author makes analysis and discussions on some questions, including the concept and the classification of POBS, the rights and interests conflict under this system ,the coordinated principle as well as the theoretical foundation of the system of POBS.The second chapter is the research on legal POBS. In this chapter, the author utilizes the comparative analysis method to introduce the related provisions in overseas and Taiwan area in our country. It mainly studies three aspects of questions, including the subject of duty on legal POBS, obligations of statutory exemptions from legal POBS, the legal consequences of violating legal obligations on legal POBS.And to the research on the subject of duty on legal POBS, the author no longer limits the research into several kind of main bodies, which various countries' legislation concentrates discuss, but ranges extension to the supervisors , the common employee, and proposes own opinion about whether they should undertake legal obligations on POBS.The third chapter is mainly to research on the agreement on the POBS. This chapter starts with the concept of agreement on the POBS, and discusses the effect of the agreement, the overall standards which to be used to identify the effect, and then the author elaborates the specific standards which to be used to identify the effect from some aspects, such as the object protected, the object limited, the deadline, the region and the service domain which to be limited, as well as economical compensation and so on. In last section, the author focuses on the dispute's processing about agreement, to dwells on the jurisdiction and the special mechanism of disputes.The last chapter is about self-criticism and perfection of POBS in our legislation. In this chapter, the author introduces respectively the current legislation of legal POBS and promissory POBS, and makes a critical review of the issues which exist in our current legislation. Especially in the legislative self-criticism of promissory POBS, the author makes a distinction between before and after "Labor Contract Law" promulgated, both has affirmed the progress of "Labor Contract Law", and has pointed out its insufficiency. Finally, the article advances some suggestions on the legislative perfection of POBS in the foundation of summarizing the others'results, expecting to have a benefit to the theory and the practice.