A Study On The Legal System Of Prohibiting Non - Competition

Nowadays, China is undergoing the great course of changing its role from Made in China into Created in China,These technologies belong to commercial secrets which are playing an increasingly important role as the intangible assets of the enterprises. However, it is already an indisputable fact that the commercial secrets are frequently leaked because of the talent-flowing.In our country, Post-employment Restraint System was established relatively late compared to other countries. The concerned conventions of Post-employment Restraint System mainly exist in some department regulations. it provides a legal basis for the Post-employment Restraint System from the level of national legislation. Nonetheless, as the Labor Contract Law only sets the principle regulations, it is in dire need of perfecting this system.Thus, it includes five parts:The first portion illustrates typical cases of post-employment restraint occurred in recent years, and introduces the main problems existed in current Post-employment Restraint System in China. In the second chapter, he author introduces the concept and characteristics of demission post-employment restraint.In the third portion, the author pointed out The benefit conflict and The principle of balance.Chapter Four and Five are the focus of this thesis. Chapter Four explores several main issues occurred in the application of demission post-employment restraint system, and Chapter Five proposes some perfecting suggestions accordingly.Issue one, the influences of the absence of the agreement or the absence of reasonable agreement on the financial compensation for the demission post-employment restraint on the effectiveness of demission post-employment restraint agreement. The author put forward that Effective Theory should be adopted.Issue two, the post-employment restraint agreement should clearly determine the amount of compensation.Issue three, the territorial scope limited by the demission post-employment restraint agreement. the author proposes that Business Scope Theory should be adopted in our country.Fourth issue is the labors’ responsibility for the breach of contract in demission post-employment restraint. the amount of the penalty for the breach of contract should not be too high the labor, generally, doesn’t continue to perform his obligation, however, if it involves in major business secrets and the not-performance would result in grave damage for the employer’s property rights and interests, the labor should continue to perform the obligations.