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Leaving The Non-competition Agreement Of Practice

Posted on:2009-08-11Degree:MasterType:Thesis
Country:ChinaCandidate:R ChenFull Text:PDF
GTID:2206360272489029Subject:Law
Abstract/Summary:PDF Full Text Request
With the establishment of China's market economy system and more and more competitive relationship between companies, the market economy system is facing an important subject how to maintain a fair competitive order. Speaking in economics, companies are always trying to find a way to obtain most economic benefits at least cost. A short cut to maintan competitive advantage is undoubtedly to get its competitor's commercial secrets at lower cost, especially the competitor's employees who know its commercial secrets, and the head-hunting companies can meet this requirement. The commercial secret is the key advantage for the company's competitive power in the market so that the company take various protective measures. The Non-competition agreement(NCA) between the employee and employer is a firewall against disclosure of the employer's commercial secret and unfair competition conducted by the employer who leaves the post. Labor Contract Law, enforced on 1st January, 2008, establishes the legal status of NCA in the national law for the first time. In consideration of employee's labor right and employer's independent operation, foreign ligislations and legal precedents are taking cautious attitude to the NCA effectiveness, performance and legal responsibility. This dissertation makes discussion about four quesitons, namely NCA's legal nature, factors affecting NCA's effectiveness, special rules in NCA's performance, and legal responsibility for the purpose to improve NCA exercise and raise our knowledge in legal practice.The dissertation, about 40 thousands words, can be devided into four Chapters,First chapter: NCA's Legal Natures. First part introduces basic contents, historical development and then the background of Non-competition, and expounds NCA's connotation and legal features. Second part expounds NCA's concept orientation, and makes some research in comparison with Non-disclosure agreement, statutory Non-competition, inevitable disclosure theory and the period from secret system, then expounds the NCA's natures and advantages. Third part expounds the basis of legal application by principle analysis of jurisprudence. First part discusses the pro rata principle rule in case of conflict between the employer's right of employment and employer's freedom of operation. Second part analyses the existence of unfairness between the two parties to NCA, and hold the opinion that contractual freedom shall be ruled by labor bench laws. Second Chapter: the Factors aAffecting the Effectiveness of NCA. First part expounds the situation of the emploer's ownership of commercial secret from the aspect of the connotation of commercial secret and its differences from the employee's common knowledg, skills and experiences; after research in comparison between employers and the special state institutions, a conclusion can be made that the special state institutions shall not qualified to be parties to NCA. Second part discusses defferent measueres shall be taken to those employers with differenct identities through cases analysis. Thrid part lists various theories about NCA's professional range, geographical range and time limit, and further demostrates the reasonable range of NCA. Fourth part expounds respective impact on the effectiveness of NCA in case of termination of NCA resulting from the employee or the employer. Fifth part is of the opinion that economic compensation is one of the preconditional element for NCA's enforcement, and that the standard of economic compensation shall be ascertained according to the employees'identities.The third Chapter: Special Rules for NCA Performance. First part expounds the natures of NCA performance, the first one is that good faith is the basic rules for NCA performance, the second one is that the NCA is performed through the emploees'negative act, and the third one is that the employers' coordination is essential for the NVA performance. Second part analyzes special situations in NCA performance, including unclear clauses in NCA, performance rules in case of employer's variation , the termination of NCA in case of its releasing into the public area under the theory of Rebus Sic Standibus. Third part holds the opinion that NCA performance should follow the system of the defence right of simultaneous performance by exposition of the theory of the defense rights of simultaneous performance and unstable counter-argument right, and then together with research in comparison with relating legislation in Shanghai and Shenzhen.The forth Chapter: Responsibilities under NCA. First part mainly expounds defult liabilities on the side of employers, including performance of obligation, liquidated damaged payment, compansation for damages, and termination of NCA, and makes some discussions about semultaneous application of the liabilities above. Second part mainly expounds the employee's responsibilities of default, and holds the opinion that responsibility performance is not principly applicable; that liquidated damaged payment is the main means to the employee breaching NCA. Third part expounds various cases where new employer assums liabilities under the theroy of third party's trespass.Conclusion: point out deficiencies in the Labor Contract Law and table relating proposals through analysis on the provisions of the Labor Contract Law in relation with NCA therein.The above is tightly based upon the experiences, analysed by the way of both theory and precedents. In terms of research methods, there are systems analysis, criterion analysis and demostration research.I really wish that this dissertation might provide some reference for justice experience of NCA in China.
Keywords/Search Tags:Leave the post, Non-competition, Emploee, Agreement
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