A Study On The Legal System Of Post-employment Restraint

Prohibition of business strife means under certain circumstance, against competition actions taken by those who have established a particular relationship with the employers. Based on incurring time, it can be defined as ex-employment restraint and post-employment restraint. Obligations of post-employment restraint should only be performed by agreement signed by and between employees and ex-employers; therefore, the unjust agreement may arose bothers. Finding a balance between the protections of enterprise benefit and labor rights and interest, society overall welfare demand for further research. Therefore, in the research, post-employment restraint is the only researching target. (In the absence of special instructions below, the prohibition of business strife means the post-employment restraint.) The post-employment restraint legal system represents the value of just and the meaning of credibility, its trade secrets and to achieve effective protection of the interests of balance system function by favor of the world, has been recognized by most countries in the world. Because of the restriction the post——employment restraint system impose on the labors'rights to work and to live. Therefore, in order to coordinate conflicts of interest, in protecting the reasonable interests of employers, while taking into account the interests of labors and the society overall welfare to achieve a balance between the interests, post-employment restraint agreement must be restricted reasonably. The post-employment restraint system bases on the purpose of coordinating conflict interests more just and effectively, to seek an optimal balance to achieve maximum social benefit. It is exactly the focus of the post-employment restraint legal system.This paper analyzes the basic theory of post-employment restraint, and the same or similar sort of foreign legal system, summarized the beneficial experience. While the post-employment restraint legal system of the legislative, judicial, practical aspects of problems comprehensive analysis. According to this construction, this paper discusses the four parts to start:First of all, in the first chapter the post-employment restraint was analyzed based on the legal theories, from two aspects to expatiate its rationality and system function. Open out the basal theory of law, sociology and economics, and balance effective protection of trade secrets and special features of conflict of interests. Secondly, the second chapter of the foreign turnover by comparing theory and post-employment restraint system of legislative experience, respectively, of the civil law and common law countries in the judicial practice in the representation of the useful experience in the analysis summary. Combined with China's national conditions, the appropriate useful experience from abroad, leaving the Improvement of the system will have implications for non-competition. Thirdly, this chapter expatiate the defects of post-employment restraint system, from the legislative, judicial and system actualizing. Inadequate legislation, poor maneuverability; system there are many difficulties in operation, the author lists ways to analyze a number of difficulties and put forward their views and solutions proposed; judicial relief, lack of effective monitoring mechanism to leave competition effective implementation of trade agreements difficult to ban. Finally, ChapterⅣ, to explore ways to improve our system of separation Prohibition. Legislation is mainly reflected in the post-employment restraint agreement on separation of legality and rationality of the formulation and refinement of criteria for judging improvement in order to enhance its maneuverability, the discretion for judges to play a reference standard. Certainly, the Legislation Law of effective implementation is a prerequisite, but also to develop the system in line with our national conditions and operating mechanism and the corresponding complementary measures to ensure the system can run smoothly. Finally, through the strengthening of judicial supervision and administrative supervision, as well as full, timely and effective judicial relief, the greatest degree of protection post-employment restraint agreement leaving the fulfillment of the legitimate rights and interests to achieve the protection of both parties.