Study Of Non-competition System

Under market economy terms, whether natural person or legal person has the right to choose a job. "To choose a job" here, includes choosing not only the scope of job or business, but also the employer or investment. People could freely choose which area to be engaged in on one's own mind and various other situations, but can't be contrary to law, and can't have behavior competitive to the original employer or investor,--namely "prohibition of business strife", preventing the obligor who have the particular relation with the obligee from encroaching on economic benefits of the original employer or investor.Prohibition of business strife is a conception from Continental legal system. It means forbidding the person who has some particular relation with an operator from launching the competitive business with the operator. In Anglo-American law, the similar system is the good faith obligation i.e. trustee obligation which is developed from Trust Law, including the prudent obligation and faithful obligation.The system of prohibition of business strife discussed in this text is developed from the faithful obligation of staff, not competing with the particular obligee in the same or similar trade, meantime it is important means of protecting enterprise business secret in modern business society.I will attempt to proceed from the angle of equilibrating the rights and interests between labourers and employers after introduction of the basic theories about prohibition of business strife, and analyze its different legal characteristics, then cite this kind of problem existing in reality in an all-round way, to propose solutions. Finally, I will propose some recommendations against the problems existed in the China's current legal system of prohibition of business strife. Generally speaking, this text is divided into five parts altogether.Part one: From the perspective of legal theory to analyze the system of prohibition of business strife. After introducing the conception and classification of the system of prohibition of business strife, started with this perspective that prohibition of business strife is limitation to the right of free career and the right of subsistence, and protection of commercial secrets at the same time, used relative theories such as confliction of rights and restriction of competition, based on relevant theories of economics and law, established the legitimacy of the system of prohibition of business strife, and furthermore extended the goal of the system which should be equity between personal freedom of careers, the right to subsistence, corporation business secrets and the public interests.Part two: By analyzing and establishing the standards of the subject of obligations of prohibition of business strife, measured and judged whether specific subjects in practice should or not bear the obligation by these standards. As a subject bearing the obligation should be as follows: 1st, there is a specific civil legal relation with a particular subject of the right; 2nd, awareness of commercial secrets. The specific subjects of the obligation of prohibition of business strife in Practice include: directors, senior managers, shareholders, partners, supervisors, brokers and agents, and employees in general. Based on the concrete analysis of the connotation and extension of these subjects, considering with the standards of the subject of the obligation of prohibition of business strife, judged concretely whether different subjects should or not bear the obligations, as well as the differences of the obligations in the content, nature, characteristics, etc. thus established the applicable subject range of the obligation finally.Part three : From the perspective of protection of labor rights and interests of laborers, to prevent the abuse of the system, with all the relevant laws and regulations, using the methods of comparative study, analyzed reasonable limitation to the system of, including the following aspects: there should be an insurable interest, which is the premise of legality and validness of the prohibition of business strife; The agreement should be in written form, which is necessary means to avoid controversy, and define specific contents of the obligation; The scope of the prohibition of business strife should be limited to the business regions having practical relations with competitive interests of the unit and to the enterprise's core competitive business areas; The prohibition of business strife after dimission should conclude a reasonable agreement within the time limit two years; The agreement should include reasonable payment of compensation, and the amount, etc.Part four: From the point of view of protection of the employing units' commercial secrets, in the form of legal responsibility to protect the realization of the system of prohibition of business strife, research the issue of civil liability for breach of obligations of prohibition of business strife. First I inspected the nature of civil liability of the violation of obligations of prohibition of business strife. There is a controversy of non-compliance and violations of rights. Following are several forms of commitments on civil liabilities, including the cessation of violations, the actual performance, damages, exertion of self-entering right. Finally I cited the legal phenomena of waiver of obligations of prohibition of business strife under certain conditions in national legislation, as well as the positive significance of such system in practice.Part five: Research on how to improve our country's the system of prohibition of business strife from legislative level. Through listing on relevant provisions of the system of prohibition of business strife in China's current law, analyzed the defects of these provisions, including not systematic, not comprehensive, lack of operational characteristics. Aiming at these deficiencies in existing legislation, made the following recommendations: to realize the reunification of the legislation; Define guidelines of legislation; Combine with the October 2005 enactment of the new "Company Law" and the Office of the NPC Standing Committee on June 29, 2006 announced "People's Republic of China Labor Contract Law", aiming against China's current status of legislation and practice about prohibition of business strife, put forward some more specific suggestions.