| All who have seen the film "A World Without Thieves" in the audience,directed by Feng Xiaogang,can remember this classic line:"what is the greatest shortages of the 21st century? Talent!"Indeed,in the process of enterprise development,for the benefits of enterprises growth,talent play a decisive role.Market competition is becoming increasingly intense,competitive advantage by virtue of talent is often superior to the competition in the lead.These people are often in senior positions in business,powerful,or enterprise technical research personnel,or in charge of the enterprise's economic lifeline,or the possession and control of a large number of customer resources,......Therefore,in enterprises,they often know almost all of the companies 'business secrets.As the market economy develops,and talent are in an increasingly competitive.The flow of talent has become moreande more frequent,reasonable and legitimate.Flow of talent is the performance of socio-economic progress,and should be given a strong proponent.But in fact,the flow of talent in the course of business secrets has been very prominent phenomenon,the backbone of the staff "quit", with business secrets of the former unit,or they find another job,or independent,or to the hands of the business secrets of the joint venture investment with others price,......This has become a major channel for the loss of secrets of the business enterprise.Modern competition among enterprises will inevitably cause fierce fight for talent.Many enterprises,in order to expand their forces,dished out high salaries as the "ball" in order to attract many people.This is often exacerbated for the movement of personnel.According to the "Legal Daily" on January 28, 2008 report,a sample survey showed that:35.24%of the professional and technical personnel have quit,in all those surveyed,almost no one can be sure that they will not change their jobs in the future.Thus,the flow of talent coming trend will continue rising.Statistics show that more than 80 percent of the business secrets of the cases are related to the flow of talent.The ratio is somewhat startling.At the same time,with the switch from the business secrets of the case in civil cases into criminal cases also to the 100 percent annual rate of increase.The author believes that people,especially the flow of high-level talent,often involving the disclosure of trade secrets,business secrets of a violation of the fight to business interests suffer.If we do not take effective measures to curb it,the consequences would be disastrous.For this reason,how to effectively prevent the flow of talent in the loss of trade secrets to protect business secrets from being infringed upon,is the problem to solve during the process of economic development.Under market economic conditions,the importance of business secrets has become increasingly prominent for enterprises,and sometimes even to the survival of a business decision.Once you have an enterprise value of the highly business secrets,it would be tantamount handheld weapon which can be arbitrary gallop at the mall,killing and winning the struggle to vanquish. Business secret is to be able to bring about tremendous economic benefits of intangible assets,such intangible assets with a certain degree of monopoly, which can often monopolistic enterprises in a certain period of time,to a certain area,within certain industries earn high profits and high returns.For this reason,an enterprise is often interested in the business secrets of other companies.The temptation is so great,they are trying and hope that they can use these "secret weapon",and take a shortcut to short-term profit.This will inevitably lead to the "grey" or "black" in the market,enterprises,and individuals and even some countries are likely to a "grey market" or even "black market" transactions to getting business secrets through improper means.With the introduction of talent,these people put the business secrets accumulated in previous unit into use,which is undoubtedly "acquired his soldiers not discount" way.And in fact,it is a wise and lowest-cost way for these enterprises to obtaining business secrets.So more and more enterprises have unscrupulous "stealing"or"prising" talent.It is not difficult to imagine that in the future there will be more and more intense competition in the market,then we will face a lot of long-term,emerging,the flow of talent through all sorts of stealing business secrets.Even under more complete legal system,it can hardly be prohibit completely.Therefore,the protection of business secrets,is extremely important to the enterprises.How to protect business secrets in the flow of human resources from being encroached upon effectively is an important problem need to pay much attention to.Prohibition of competition,as the most effective means for the protection of business secrets,is extremely vital practical significance,and this has caused people's Universal attention.Increasingly fierce competition in the market today,prohibition of competition is usually widely used by enterprises to protect their own interests.January 1 this year,since the implementation of the "Labor Contract Law" clear for the Competitive Restriction A specific provisions.Article 23 of the Act states:"In the labor contract,employers and workers agreed in the conservative employing units and the business secrets of the confidentiality and intellectual property-related matters.Bears the duty of confidentiality to the workers and employers in the labour contract or can be kept confidential agreement with the workers in terms of Competitive Restriction agreement, and agreed to dissolve or terminate labor contracts,in the period of Competitive Restriction monthly economic compensation to workers. Competitive Restriction workers violated the agreement shall,in accordance with the employing units agreed to pay a penalty."In other words,whether the law will be signed noncompete agreement with the workers the right to the enterprises,under specific circumstances,from the perspective of long-term development of enterprises making a decision.Once the two sides signed a noncompete agreement it should be subject to binding agreements.Currently, for the enterprise,prohibition of competition is the most effective measure to protecte business secrets,and in practice it is most frequently applied.However,prohibition of competition is an extremely sharp double-edged sword.It protects business secrets from being infringed upon,and at the same time,such measures will limit the expense of the workers and even the free right to choose their jobs.It will be difficult for laborers to survive and develop.In another word,prohibition of competition has a negative impact. Therefore,it should be treated seriously when apply it.We should treat prohibition of competition accurately in the "degree",through effective means and methods to debug,in order to keep the balance between labour rights and the protection of business secrets.For the contradictions between the right to free choice of profession and prohibition of competition,how to keep the balance between the two in our legislation? Many scholars has paid more and more attention to it.It is self-evident that to a certain extent,prohibition of competition destructed free right to choose their jobs for workers.Bound by the restrictions on use of its employees from the work experience gained knowledge, experience and skills in their familiar work in the field of the freedom to make a living,they are not able to perform their talent and expertise,which is bound to the lives of workers with different degrees of damage.More than reasonable scope of the noncompete violation of the principle of free competitive,.It will not only hurt the right to free choice of profession and threaten the livelihood of workers and survival,but also creat the objective of the enormous waste of human resources,so it is a social productive forces destruction.Therefore,I believe that enterprises,in the use of prohibition of competition,on the protection of business secrets,should have a good grasp noncompete restrictions on the "degree",and mastery of the following two principles:the right of(business secret and the right to free choice of profession) both principles,and the right of workers to jobs appropriate priority principle.Only under this condition,may have signed a reasonable and effective noncompete agreement,and in order to balance the employing units and maintenance workers Competitive Restriction between the right to freedom of career interests.In other words,for the time being,with the balance workers the right to freely chosen relationship between the best measure is the employing units and workers signed a reasonable,effective noncompete agreement.If they are within the scope of reasonable Competitive Restriction,such noncompete agreement will not harm the freedom of workers right to choose their jobs and threaten the survival of workers,but also to play a positive mobilize workers,and increase the competitiveness of the role. |
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