Research On The Protocol Of Prohibition Of Business Strife

The laws and regulations on business secret and prohibition of business strife in China are very imperfect. Thus, a lot of disputes happen, especially in recent years more and more enterprises have needed to conclude and sign prohibition of business strife protocol. Then, how to conclude and sign a piece of perfect and effective prohibition of business strife protocol becomes an issue which is cared about by enterprises and staff. In this essay, aiming at the actual situation of China, the author states some opinions on the formation of prohibition of business strife protocol.This essay is divided into three chapters structurally:Chapter-1 is the overview of prohibition of business strife. At the beginning of this chapter, the implication of prohibition of business strife and cardinal rules that should be obeyed are stated, which establishes theoretical basis for how to conclude and sign prohibition of business strife protocol and which contents should be concluded in prohibition of business strife protocol. And at the same time, it makes readers have a shallow concept on prohibition of business strife.Chapter-2 is the specific statement on the contents of prohibition of business strife protocol.At first, the author makes it clear that which regulations are made about prohibition of business strife in our current Labor Contract Law. The author quotes cases to explain, and then draws a conclusion that prohibition of business strife protocol should be appointed from the following aspects.Firstly, the subjects of two parties concerned in a protocol related to prohibition of business strife that should be includedThe author thinks that staff that has the possibility to be involved in business secret should be in the list of prohibition of business strife. The one side that signed specifically prohibition of business strife protocol should be enterprise technicians, enterprise higher management, and staff that have the condition to know and understand the business secret of employing unit. And the other side should be the employing unit that owns business secret.Secondly, the confirmation for the duration of prohibition of business strife The upper limit of prohibition of business strife duration of every country in the world is generally provided to be two to three years. Labor Contract Law only works out the upper limit of prohibition of business strife duration, which should not exceed two years. And it doesn't work out specific provision on the lower limit.Thirdly, the scope of prohibition of business strifeThe cause of prohibition of business strife is enterprises'business secret, goodwill, operation effectiveness, and business relations that are developed by a lot of manpower and material resources spent by enterprises, so prohibition of business strife must be careful, and the agreed scope must be accurate. If business secret scope is too big, prohibition of business strife protocol will violate workers'employment right, which makes protocol contents invalid.Fourthly, the regional restrictions of prohibition of business strifeThe author is entangled in the statement of this part. Finally, the author confirms the regional restrictions of prohibition of business strife that regarding the business scope of employing unit as foundation, combining the rank, quantity, and position of business secret mastered by him, and the ability of creating and maintaining business secret, and considering whether it will occur competitive relation with the original unit, to restrain them.Fifthly, the ways and means of undertaking liability for breach of contractAfter achieving prohibition of business strife agreement between unit and staff, it has constraint force to both sides. The amount of liquidated damages should be executed according to the agreement of both sides. The author thinks that when appointing liquidated damages, compensatory payment and loss which is caused by workers to enterprise should be served as foundation, combining the situation of enterprises and staff themselves to confirm.Sixthly, the compensation method for leaving employeesIf there are not compensate contents in prohibition of business strife contract. The author thinks that the prohibition of business strife part in this contract is invalid. And the author thinks that there are three compensation guidelines can be used as a mirror. At first, the national average wage level of the last year can be referred to and multiplying compensate; next, multiplying compensate according to the average revenue of this post of this industry last year; at last, multiplying compensate from the operation effectiveness and yield returns of enterprise itself and at the same time according to the yearly income situation of staff.Chapter-3 is the current situation, insufficient, and perfection of prohibition of business strife in ChinaIn this chapter, the author mainly discusses the deficiency of our country on prohibition of business strife regulations in business secret rank, especially there are few regulations on region and scope. We look forward to perfecting this part of regulations as soon as possible.