Separation Of The Noncompete

With the development of the market economy, the trade secret as an intangible property is playing more and more important role. But in the information age, the trade secret is always disclosed by frequent job-hopping of employers. The traditional ways of protecting trade secret have not played a role, the post--employment restraint system as a prior preventive measure is playing its unique role.As the post--employment restraint system works by limiting the labor rights of workers to achieve the purpose of protecting trade secrets. So we must coordinate the conflict between them, limit the effective conditions of the post--employment restraint system. The "Labor Contract Law" was implemented on January 1,2008.It was the first time to set the post--employment restraint system totally, including the scope, duration, provision, etc. However, if we analyze carefully and compare with the foreign post--employment restraint system, we will find the inadequacy which needed to be solved. The thesis is divided into four chapters:Chapter one:the overview of the post--employment restraint. Firstly, the concept and classifications of the employment restraint are introduced. There are many different classifications of the employment restraint according to different standards. For example, if basing on incurring time, it can be divided into ex-employment restraint and post-employment restraint; Secondly, the concept and characteristics of the post--employment restraint are introduced; and compare the post--employment restraint with trade secret protection, secrecy agreement, etc; and get the connections and differences between them.Chapter two:the theoretical foundation of post-employment restraint. Firstly, it introduces the trade secret rights and labor rights, and analyzes the contradiction between them, indicates that some legal measures must be work out to coordinate the trade secret rights and labor rights, it is the post-employment restraint system; Secondly, it analyzes the post-employment restraint in economics, it can benefit more than the cost by using the cost-benefit method and it can protect the development of the market economy and the benefit of the society although it limited the labor rights in some extent according to the Caldor·Hicks theory,so the post-employment restraint is reasonable and feasible in economics; At last, Honest and trustworthy principle and the principle of judicial autonomy are possessed of legal foundation.Chapter three:the post-employment restraint system in the two major law systems. Firstly, it introduces the post-employment restraint systems in the United States and Britain; then introduced the systems in Germany, Switzerland, Italy, Belgium, Japan and Taiwan of China. It summarizes the post-employment restraint systems in the countries above.Chapter four:the legislation of the post-employment restraint, its deficiency and the suggestions of improving.Firstly, it introduces the relative legislation of the post-employment restraint in our country, the "Labor Contract Law" which put in force in January 1,2008 gave specific prescribe systematically and roundly first time. Secondly, it identifies the main deficiencies of the "Labor Contract Law", for example, the field for the separation of the post-employment restraint provision is too broad; the post-employment restraint period is too general, etc. in the aspect of suggestions of improving the post-employment restraint. Firstly, it identifies the basic standpoint; we need limit post-employment restraint reasonable, because when it protects the trade secret, it infringes the labor rights. Secondly, through analyzing the legislation of foreign countries, giving some suggestions to improve the post-employment restraint in our country, for example, the field and period for the separation of the post-employment restraint must be specific, the compensation and other issues need to be more specific.