Research On The Prohibition Of Competition Agreement In The Protection Of Trade Secrets

The flow of talents poses a great threat to the loss of corporate trade secrets.The non-competition agreement is one of the important measures for employers to protect trade secrets.As a precautionary measure,the non-competition agreement has the following significant advantages compared with other protection methods:First,it supplements the defects of the special obligation rules in the protection of trade secrets,that is,it makes up for the special obligation regulation in the main body and protection scope.Secondly,it has a pre-protective effect as a precautionary measure,the lag of the litigation after-the-fact remedy;and third,it can also play a protective role when the trade secret is violated.Of course,as a security measure,it also has economic rationality,increases the corresponding infringement costs,and reduces the risk of loss of trade secrets.On January 1,2018,the new "Law of the People's Republic of China Unfair Competition" was officially implemented.This revision redefines "trade secrets" and does not mention the prohibition of competition.On January 1,2008,the new " Law of the People's Republic of China on Employment Contracts " further perfected the legal system for the establishment of the non-competition system in China,but it only stipulated in principle that the prohibition of competition was prohibited.The concept of a non-compete agreement has not been explicitly stated.As the current non-compete agreement system is still not perfect,some disputes and problems are exposed in legislation and practice.This paper combines specific cases and conducts in-depth analysis centering on the non-competition agreement.In the protection of trade secrets,the non-competition agreement contains many contradictions of rights and interests,such as self-employment rights,trade secret rights and social public interests.Competition prohibition is the product of equity balance.Of course,the scope of application of the agreement should be in accordance with the law,and employers and employees can only achieve private law autonomy and contract freedom under the premise of legality.According to the current general and practical views,the standards for the validity of the non-competition agreement are summarized as follows:there are trade secrets that can be protected,applicable subjects,deadlines,areas where competition is prohibited,industry sectors,and appropriate economic compensation.According to the above criteria,the interests of multiple parties can be balanced,the employer's trade secrets can be protected,and the employees' freedom of choice can be effectively guaranteed.Of course,rights and responsibilities are corresponding.The right is bound to be responsible.If a specific subject violates the non-compete agreement,it must bear the corresponding legal responsibility.The academic community has always focused on employees,often ignoring the responsibility of the new employer and the original employer.In particular,the new employer,not the parties to the contract,has a lot of controversy over the responsibility.There are three situations:First,the new employer is not aware of the employee's non-competition obligation,and establishes a labor relationship with the employee,and the employee does not infringe the original employer's trade secrets.The new employer is a bona fide third party.There is no need to bear joint and several liability;second,the new employer knows that the employee has a non-competition obligation and still has an employment contract with him,but the new employer has not infringed the original employer's trade secrets because of an employment relationship with the employee.There is no need to bear joint and several liability;thirdly,some new employers know or should know that the departing employee has a non-competition obligation but the purpose is to obtain the original employer's trade secrets and establish a labor relationship or deliberately induce the resigned employee to "job",at this time the new employer Should bear the corresponding joint responsibility.The non-compete agreement system in China's legislation is not perfect.The lack of legislation at the national level makes many issues in practice have different opinions and judgments.Even in the case of Wang Yunfei v.Schneider,the Shanghai Arbitration Commission has identified both parties.The non-compete agreement was valid,and the Nanjing court held that the non-compliance agreement was invalid because the compensation agreed in the agreement was lower than the employee.At the national legislative level,the legal effect of the non-competition agreement is clarified,which can affirm the value of the prohibition of competition and play a guiding role to avoid ambiguity.Specific and clear legal provisions are undoubtedly crucial to solving real problems.Among them,the non-compliance compensation standard and payment method should be clearly defined,and the disputes should be fixed.For example,if the maximum or minimum amount is imposed,the payment method can meet the legal requirements.The new employer assumes joint and several liability,and the results of the judges are different according to different regulations.At the legislative level in our country,we should confirm the legal responsibilities of the new employer under what circumstances.Of course,if the new employer is a malicious third person and infringes on the original employer's trade secrets,in addition to taking joint and several liability for non-competition,he may also be held liable for infringement of trade secrets.