Study On The Effect Of Non-competition Agreement

The core of competition among enterprises is the competition of talents, who haveenough talents may remain invincible in the competition.But, ceaselessly job-hoppingphenomenon cause talent mobility aggravating.In order to protect the business secrects,employing units signed the agreement of prohibition of business strife with their employees. Anon-competition agreement which establised to safeguard the interests of the employing unitsis based on the non-competition.,however,employers to use oneself advantage to compelworkers to sign a non-competition agreement even if a unit and a laborer meaning isconsistent results.With the burden of non-competition obligations, the labors may not use thefamiliar knowledge or skills to make a living, and the workers free employment right andeven the right of existence bring infringement which The Constitution gives would bedestroyed. Non-competition in this paper is in “the laber contact law”,this relates to thebehaviors of workers after they leave their work.Whether a non-competition agreement is effective or not is directly related to thecommercial secrets of the employing unit and could give a restriction to the laborer obtainemployment and survival rights. Because our country started the non-competition system toolate, the non-competition agreement validity of laws and regulations is not very perfect.Supreme people’s court issued “the interpretation of the case law applicable to a numble ofissues on the trial of labbr dispute Ⅳ”,stills defects exist in the specific provisions, resultingin many problems in judicial practice. Therefore, it is necessary to research thenon-competition agreement and explore what is the agreement effective element, to balancethe interests of both sides.In reference to all the combined effect of regulations, judicialpractice and our situation, The author put forward some opinion of non-competitionagreement.This paper is divided into five parts:In the first part, based on the concept of competition restrictions and non-competitionclassification to analyzes the characteristics of the non-competition agreements,to pave theway for discussion of the effect of the non-competition agreement.In the second part, I will explore the theoretical foundation of the non-competitionagreement, including the principle of freedom of contract, the principle of good faith, the principle of balance of interests.Three principles are combined with each other and constantlyrevised to reflect the non-competition agreement theory formation process.The third part introduces current non-competition agreement related law, localregulations, department rules and other regulations in our country, judicial interpretationpoints out loopholes for the non-competition agreement effectiveness in the legislation,through the analysis of typical cases,the court judgment in judicial practice at present.In the fourth part,with the combination of advanced foreign legislation, the main factorswhich affect the non-competition agreement effectiveness will alone to be explored,.Inforeign countries, for the non-competition agreement, in addition to a number of AmericanStates have fundamental negative attitude, the vast majority of countries (regions) areconsidered a suitable foundation, but in specific agreement need to have reasonable limits,namely in the effect of the factors of the difference, mainly relates to "the subject, form ofagreement, the interests of the employer,leaving reason,economic compensation, time,regionand industry",such as the leaving reasons, commercial secret, the employer to pay economiccompensation. Comments on the influence of non-competition agreement standard and legaleffect is the key point of this paper.The fifth part is combined with the legislation and judicial practice in China, to classfythe impact of non-competition agreement effectiveness factores.Putting forward anon-competition agreement examination standard of validity and summing up thenon-competition agreement valid conditions in order to perfect our country’s prohibition ofbusiness strife and legislative regulation.