The Conflict And Coordination Between The Right Of Trade Secret And The Free Choice Of Laborers Under The Competition Restriction System

People's protection of trade secrets has never stopped.There are a variety of trade secrets protection measures in the process of developing,which mostly for the way after the relief,after the relief measures have great limitations,once the trade secrets of the permanent loss of this feature makes that in addition to protecting the actions of the infringers,the protective measures are almost impossible to protect the role of trade secrets.With the development of the protection system of trade secrets,an ex ante measure of protection of commercial secrets came into being,that is,the system of compulsory competition.The contractual competition system is intended to maintain a competitive advantage by restricting the entry of workers into a unit that has a competitive relationship with the original unit or restricting the employee to carry out a competitive relationship on its own,and as one of the important means in protecting trade secrets is widely used.This system can save a lot of money for the employer before the disclosure of the confidentiality agreement.This system sets the system for the specific person before the trade secret leaks obligations,so that enterprises spend very little cost while also effective protection of trade secrets.In short,the agreement on the non-competition system for the employer's trade secret protection is of great significance.Today,China's knowledge-based economy in full swing,talent and technology in the knowledge-based industries play an increasingly important role.Business secrets as an important intangible asset that can create huge economic benefits for enterprises is an important resource for enterprises to survive and develop.Enterprisesto maintain their competitive advantage on the protection of trade secrets of the increasing degree of attention,which requires employees to work in the post on duty,to comply with the employer's business secret rules and regulations,but also requires the staff who the master of the trade secret do not leak trade secrets after they leave.In practice,an enterprise usually protects its own trade secrets by means of a special salary,such as a confidentiality agreement or a non-competition restriction agreement with the employee,the internal regulations of the business secret protection and the payment of technical personnel,to maintain or gain competition in the future advantage.Among them,agreed non-competition system as an important measure of trade secrets protection,almost all enterprises apply.With the economic and social development,the frequent flow of talent,corporate business secrets along with the staff quit and even other companies malicious "digging the wall" was leaked.This is a great difficulty for the protection of the employer's trade secrets.However,the flow of talent is a manifestation of the exercise of the right of freedom of employment by the workers,as the two rights to protect by law,the conflict between the two rights is becoming increasingly prominent.The current policy of agreed non-competition system is to protect the business secrets of the enterprise,the state through the legal form of the workers free exercise rights to a certain degree of restrictions in order to achieve the protection of trade secrets role;However,the market economy environment,as individual workers are relatively weak in all aspects of the employer,in the agreed non-competition system often play a passive,weak role,this weak position even in the litigation process,the workers' in the litigation process time,energy simply can not compete with the enterprise.In the case of such a disparity in power,if the company makes use of the existing laws and regulations that they are too principled,vague and operable,and make excessive use of the "Labor Contract Law",excessive protection of the business secret of the business,which is free to choose the right to workers is bound to be an injury.In the practice of judicial practice,the case has been "drifting" growth in 2014,and most of these cases have been approved by the employer in a legal but unreasonable or unfair legal practice condition.It is also because of the overarching principle of the competition system,the lack of operability,to the judge referee related cases also brought great difficulties,the judge for different cases of specific circumstances have different understanding,resulting in different cases of the same case often appear,inturn,to the subsequent practice of non-competition to bring a bad guide to the practice.It is found that there are many places that can be perfected in the system: First,the relevant provisions of the legal system,the provisions of the non-competition system are scattered in the laws and regulations,regulations,minutes of meetings and even notice,there is no system to form a system;part of the competition limit the effectiveness of the standard level is not high,both sides of the labor and capital constraints are limited;Second,the "Labor Contract Law" agreed to exercise restrictions on the system is not strong;Third,The content of the non-competition system and the legal competition restriction system are completely fragmented and lack of linkages;Fourth,the contents of the norms of the current competition system are not unified;Fifth,the legal liability stipulated in the non-competition restriction is not perfect.In view of this situation,the establishment of a reasonable system of agreed non-competition system is the effective means to coordinate the conflict of the free flow of talent and the protection of trade secrets.China's agreed non-competition system is an effective means of protecting the trade secrets of the employer.In view of the fact that the system achieves the protection effect of trade secrets in a way that restricts the free exercise of the workers,a protection of rights restricts the other right,which reflects the value of the legislative orientation;the same time,in order to ensure that workers are free to exercise the right to arbitrarily restrictions on the legislative need to limit the elements of competition to be refined and strictly limited.The mature experience that can be learned from the practice of restricting foreign competition is: the strictness of the application of the agreed non-competition system,the priority of the protection of the right to choose the job,the clarity of the legal responsibility,the scientific nature of the basic elements of the non-competition system;the need for compensation set and the amount of clarity.This paper analyzes the relevant literature from the point of view of the conflict and coordination between the free exercise right and the protection of the trade secrets of the employer in the law,and uses the empirical analysis method and the literature research method,and supplemented by the Chinese referee instruments.This paper summarizes the main types of disputes in the practice of judicial competition in our country,and concludes that the main system which is easy to lead to disputes between employers and employees in China,combined withthe mature legislative concept of extracurricular competition system,the principle of restricting the negative external effect restriction,giving priority to protecting the principle of free choice of ownership,the principle of balance of interests,the principle of reasonable restriction,suggestions on perfecting China 's current contract restrictive system.