A Study On Corporate Senior Managers' Obligations With Restrictions On Competition Under Dual Legal Relationships

The competition restriction system is a legal measure adopted by employers in highly developed economies at this stage to protect their business secrets.At present,the most remarkable feature of building an innovative country vigorously advocated by the whole society is that it has independent intellectual property rights,and also includes the business secret rights of enterprises.With the continuous improvement of China's economic level,corporate governance issues have gradually shown a trend of diversification and complication.The practice of "learning technology is better than stealing information,and stealing data is worse than digging talent".As the company's managers,company executives exist as the company's managers and some owners.Due to the existence of agency costs,in the daily commercial business activities,they will naturally be in the market share and interest division.Companies constitute competition.Therefore,it is necessary for the development of the company to regulate its competition activities.However,the regulations on the competition restriction system in China's current laws lag behind the requirements of the current economic development trend.The regulations related to the competition restriction system are mainly found in the legal departments of the Company Law and the Labor Law.In2007,“Competition Limitation” appeared in the “Labor Contract Law” in the form of legal proper terms for the first time in China.Article 24 stipulates that the seniormanagement of the employer has the obligation to limit competition;“Company Law”Article 148 specifies the specific competitive restrictions of senior managers.The two laws do not specify whether the connotation of the subject is the same,and whether the two "senior managers" are the same concept.The determination of the status of executives can be started from two aspects:formal requirements and substantive requirements.From this permutation and combination,three kinds of employees who may constitute senior executives are obtained: employees with formal requirements and substantive requirements,employees with formal requirements and lack of substantive requirements,and employees with substantive requirements and lack of formal requirements.Based on the fact that senior executives are directly elected by the company's board of directors,take care of the company's daily business affairs,and even take charge of personnel management,and have the attributes of employer representatives;at the same time,they are employed by the company,there is a labor relationship with employment,and the reality of employee attributes.Laborers should be different from ordinary laborers and apply labor laws in a differentiated manner,that is,they should be "de-strongened".At this time,if the competition restriction agreement signed in the context of civil and commercial French,if the agreed restrictions on business,region and other content conflict with the provisions of the labor law,it should not be blindly denied the validity of the contract.The implied duty of loyalty of laborers is based on three different types of executives,which are individually applied according to their location and income.Post-employment competition restriction obligations are first regulated from the source.Strictly restricting the signing of competition restriction agreements is the only source of post-employment executive competition restriction obligations,which is conducive to cultivating the rights and obligations of contract parties and the spirit of the contract.Secondly,starting from the validity and rationality requirements of the competition restriction agreement,the competition restriction contract that violates the legality and rationality is an invalid contract and is not binding on the contract obligor.This article is based on the difference between the provisions of the companylaw and the labor law on the obligation to restrict competition.It mainly starts from the applicable object and the application period.It analyzes the statutory competition restriction obligation,the agreed competition restriction obligation and the in-service competition restriction obligation,and the resignation competition The overlapping of restriction obligations aims to put forward suggestions on the convergence of the application of different competition restriction obligations of the "corporate executives",which are controversial in the three theories and practices,to improve the legal efficiency and legal effect of competition restrictions.It summarizes the three main competition restriction obligations,which are the legal competition restriction obligation in the company law,the employee 's implied loyalty obligation,and the labor restriction agreement in the labor law.Restrictions on competition are the main,supplemented by the obligation to restrict competition.The obligation to restrict competition in the labor law should be “de-strengthened”,except for the source of the obligation to restrict competition after leaving employment.Business restriction agreements are the only way.