Discussion About Non-competition System In China And Its Perfection

With the fast development of socialistmarketingeconomy, the competition nowadays has become increasingly fierce. Under this circumstance, to protect business secrets, employers often choose to sign competitive restriction with labourers. But the problem is:to the labourers, this will increase the difficulty of employment and limit their choice of profession and labor right. Competitive restriction system is a double-edgedsword:though it is rational to protect employers’ interest---maintaining their advantages by avoiding the leaking of business secrets; to some extent, it causes actual threats on choice of profession and labor right to labourers. Therefore, only when it is kept within certain limit can competitive restriction play the role. Once it goes beyond the limit, it inevitably will seriously injure labours’employment right and life right. Due to the fact of being unable to work under familiar backgrounds, large majority of labourers will suffer huge employment pressure, which threatens social stability and prosperity.In today’s labor relations, the game between employers and employees, to a great extent, is actually the conflict and balance regarding the protection for employers’ business secret and employees’free choice of profession and labor right. Balancing the interests of both sides calls for a corresponding system design under the guidance of specific legislative ideas and principles. Competitive restriction could work this out effectively and it is widely adopted in countries around the world. It is of important theoretical and realistic significance to design a sound competitive restriction system. Employees’competitive restriction obligation derives from duty of loyalty. Duty of loyalty is the insurance for employee to perform daily work duties. Hence, only when the duty of loyalty is made clear can employer gain reference to regulate employees’ behavior regarding competitive restriction. Competitive restriction system is to balance rights and interests among market subjects and to restrain disorderly competition. Laws should not only protect the employer’s business secrets. Rather, while human resource is becoming more and more major driving force for development, the key to maximize public interests is to set up boundaries between employees’labor right and employers’ business secret right.As one of the effective methods to protect employers’competitive advantages, competitive restriction has been widely recognized and applied in the early and middle stage of foreign countries’legislation and judicature. However, they have different opinions towards it. Besides, in different time periods, perspectives change. It’s essential to refer to the advanced experience from typical countries to perfect our competitive restriction system, protecting employers’business secrets as well as employees’labour right, which will stabilize the order of market competition.At present, there’s no explicit stipulation in our law for employees’duty of loyalty. Consequently, employees’competitive restriction obligation has been vague all the time. Countries have thorough regulation on competitive restriction in dismiss ion. In Civil law countries, rules for the validity of competitive restriction in dismission are quite detailed. In Common law countries, the case law gives judges the rightofdiscretion. In our country, Labour Contract law and other local regulations also have rules for competitive restriction. Yet there’s still long way to go for the perfection.The whole paper is divided into four parts. To start with, it is the overview of competitive restriction, mainly describing the connotation, the origin and development, classification and its legal features. Secondly, taking the rules in our law on competitive restriction as the entry point, this paper digs deeper on the current situation and existing problems from four aspects of legislation regulation. It proposes a series of issues on our completive restriction system, such as the lack of on-job competitive restriction; the broad scope of professions and geographic regions for competitive restriction; the general range of obligation subject; the missing of rules for liabilityexemption. Thirdly, it will expound the points we can borrow from advanced experience from typical countries. At last, it puts forward the legislative suggestions to perfect competitive restriction system:establishing on-job competitive restriction rules; determining the reasonable scope of the professional restrictions and geographical restrictions;applying special collective contract to competitive restriction domain and introducing injunctive relief system.