Study On Advance Notice Period Institution In Labor Law Of The PRC

When labor relations are dissolved,the disclosure of trade secrets caused by transfer of labor has become one of the most important concerns of employers.Signing confidentiality agreements and non-competition clauses with laborers is the usual method adopted by employers in China.However,in the case that the labor relationship has been terminated,the laborer has no personal subordination to the employer.The restriction clause on the resigned workers' right to choose a new job is not only controversial in academic,but also defective in the implementation process.This paper aims to provide another way for the protection of trade secrets in labor law by improving the existing advance notice period institution.The advance notice period institution for trade secret separation is a trade secret protection method that allows enterprises to take measures to remove confidentiality within a certain period of time through advance notice of laborers.The provisions of this institution currently exist in the departmental regulations of the Ministry of Labor and the local laws and regulations of some provinces and municipalities.Since Article 37 of the Labor Contract Law gives workers the right to unconditionally terminate the labor contract 30 days in advance,the institution of advance notice period has repeatedly hit the wall in the implementation process.The foreign “Garden leave” institution is similar to China's advance notice period institution,recognized by western employers and most courts in practice,becoming a regular method of the trade secrets protection with the non-competition restriction.Based on the two mentioned institutions,this paper believes that the advance notice period institution should be stipulated in Chinese Labor Contract Law.At the same time,this paper has made detailed thoughts on the improvement and further application of the advance notice period institution for trade secret separation and put some forward innovative suggestions.This article consists of the following five parts.The first part is the introduction part.The research of this paper starts from the application of the advance notice period in the financial industry,and points out that the advance notice period institution is the improvement of China's commercial secret protection system,making up for the deficiency of competition restrictions.This paper summarizes the research status of this institution in China as well as the research status of "garden vacation" institution in foreign countries,thus concludes the similarities and differences between two institutions.The second part is an overview of the institution and its comparison with other trade secret protection methods.In simple terms,the advance notice period institution is a consensus between employers and laborers which workers are required to notice their employer within a long period before removes labor relation.The employers will protect its trade secrets by,such as,transferring posts or other measures.The institution has three main characteristics: the existence of labor relations,a longer notice period,and the reduction of labor obligations of the employer.Compared with the restriction of competition,the advance notice period institution can both protect the workers' right to choose a career and meet the demand for the protection of business secrets.The third part is the summary of the current situation of the advance notice period institution.From the legislation sight,the conflict between the Labor Contract Law and the low legal rank of the advance notice period institution leads to the uncertainty of the effect on such appointment.In judicial practice,the court's attitude towards the institution is also inconsistent.Considering the huge demands for the institution,it should be clearly stipulated in the law.The forth part puts forward four problems of the institution: the provisions of the system in the legal provisions are not clear,the employers' wrongly application of the agreement,the insufficient consideration paid by the employer,and the restrictions on workers' rights.Only by solving this above problems can we ensure the smooth implementation of the advance notice period institution.The last part explores the issues raised in part four and provides corresponding suggestions.First of all,modifying Labor Law or Labor Contract Law to state the institution clearly is urgent.It is also required to increase labors' responsibility for breach of contract.Secondly,in order to prevent the non-standard using of the institution,the range of laborers adaptable and how to adjust the period length shall be specified.Thirdly,the consideration payable by the employer during the period shall be consistent with not less than 80% of the original salary,along with exempting part of the labor obligations of the laborer.Finally,considering the balance of rights between the labor relations,the importance of express obligation is vital.The prohibitive on the conduct should be used with caution,and the worker cannot revoke the request for resignation in general.