The Legal Thinking On Improving The System Of Prohibition Of Business Strife In The "Law On Employment Contracts"

Prohibition of Business Strife(POBS) is also named compete industry evades stops, to compete industry gives way to traffic, the same business to forbid, to compete industry the limit.Modem system of POBS rooted from agent system of Civil law, which Evolved to Trustee system of Corporation Law at modem times. And the development from Trustee Trustee system of Corporation Law to Modem system of POBS has experienced a process from specialness to general.The system of POBS plays a very major role in the effective protecting business secret of enterprise, defending the reason able order of market economy, promoting sustain able development of economy and technical aspects and so on. But because this system also involves to the intense conflict right between the right of work and the employer's right of management the enterprises'individual benefits and the social benefit of encouraging human resources flowing and so on, from the beginning to now, the system of POBS has been developed in the challenge and approval. There is still some challenging voice even today. But generally speaking POBS is a progress of relations of workers and employers in the market economy environment. Its advantage is bigger than the shortcoming. Especially in the environment in Which market economy is prosperously developing, People's employment way changed tremendously, "changes job" "wins over a popular actor from another company by offering higher Pay", and so on has been common, and it also already has been a ordinary, a Person concurs two duties even several duties. How to balance between worker's right of work and employer's right of management, how to protect workers'right of independent choosing profession and the employers, business secret at the same time.In addition to the full analysis of the related elementary theory of POBS, Using historical analytic method, comparison test and economic analytic method, inquired into the other market economy developed countries achievements of POBS, Unifying our National condition of Socialism initial stage market economy, this article Carries on the concrete consummation to our country's system of POBS.In structure and content, this article divide the research of the system of POBS into five parts:The first refers to the elementary theory about POBS, which including two sections. The first section is the outline, which form the angle of evolving history analyze the meaning of POBS and the relation between the labor POBS and POBS, and from this we can draws out several big basic legal characteristics which the worker competes industry forbids to have:The second section analyzes the intense conflict between the right and benefit which the System of POBS has to face, which is the reason Why the POBS is denounced, including the conflict between enterprise right of management and worker right, the enterprise PersonalInterest and the social benefit of encouraging the human resource flowing, worker general technology and the technique relating business secret, comprehensively realizing the Positive and negative effects which come from POBS;The second part comprehensively analysis the rationale of the existence of POBS form the aspects of morals, economic, legal science and so on, and Proves the value of the system of POBS from the angle of effectively Protecting the business secret, order of Market competition, the sustain able development of economical technical, and establishes the system's validity.The third Part, using comparative and analysis methods, embarking from the two Situations of on-job POBS and quit job POBS, take British, American's related law competes as the example to elaborate economically advanced country's system of POBS, and carry on the comprehensive elaboration about present situation of our country's system of POBS.The fourth part mainly focuses on an analyzing the controversial problems in the judicial practice about the system of Prohibition of business strife in the "Law on Employment Contracts", so that Prepares for the after of this thesis. The fifth Part is the emphasis of this thesis, which is about how to correct the system of prohibition of business strife in the "Law on Employment Contracts" The thesis establishes the tenet how to correct firstly, and then learns from the legislations on the Prohibition of business strife of foreign countries, consults the legislation on the Prohibition of business strife before the "Law on Employment Contracts" and corrects the defects of the system of prohibition of business strife in the "Law on Employment Contracts" through combining with the actual situation of our country.