The Hermeneutic Analysis Of The Non-competition Rules

From the perspective of Chinese labor law,the non-competition rules are established late,the text is rough,the semantic is vague,the academic views are abundant,and the disputes in practice are frequent.Among them,the compulsory subject of non-competition rules,the compulsory paradigm and the essential attributes of economic compensation are the core issues concerned by the academic and practical circles.The conclusion can be drawn to a certain extent by analyzing the controversial issues from multiple perspectives through the method of interpretive theory.This paper mainly studies three main topics,one is the scope of the subject of non-competition obligation;The second is a specific analysis of the content of non-competition obligations,which is a clear definition of the typical paradigm of the application of non-competition rules,including the subject unit of non-competition obligations,the definition standard of similar businesses and specific competitive behaviors.The third is the essential attributes of economic compensation,mainly including the validity of non-compete agreement without economic compensation,legal consequences of employer’s failure to pay economic compensation,etc.In view of the scope of the subject of non-competition obligations,Article 23(2)of the Labor Contract Law stipulates that the employer can agree on non-competition restrictions with the worker who has the confidentiality obligation.In practice,the worker who signs a non-competition agreement with the employer is basically presumed to be the worker who belongs to the non-competition obligatory agent.According to the analysis from three perspectives of the interpretation of the text of the rules,the purpose of normative design and the interest parity,the author believes that the scope of the obligator of competition restriction should be less than that of the confidentiality obligator.Specifically,it should be limited to the workers whose job or post is directly and naturally related to the secret information of the employer.The paradigm content of non-competition obligation includes competition relationship,namely the identification of "similar business" and the judgment of competitive behavior.For the identification of "similar business" in the competition restriction,it is necessary to judge whether the employer constitutes "another employer that produces or operates similar products and engages in the same business with its own unit" according to the actual business content(hereinafter referred to as the competitor);Secondly,the actual work of the laborer in the former employer should be examined,and the "similar business" should be limited to the work or business related to access to trade secrets.For the identification of non-competition behavior,according to the objectives and implementation effects of the non-competition rules,the non-competition obligator shall be restricted from obtaining employment from other employers with competitive relationship,regardless of the position.In view of the analysis on the effectiveness of economic compensation,this paper holds that neither the absence of economic compensation clause nor the absence of payment of economic compensation will affect the effectiveness of non-competition agreements.In the rules of non-competition,economic compensation clause only confirms and concretifies legal obligations in an explicit way.In other words,even if no economic compensation clause is agreed,The employer also needs to fulfill the compulsory payment obligation stipulated by law.The absence of economic compensation clause will not affect the validity of the non-competition agreement.The absence of payment of economic compensation is a breach of contract and has nothing to do with the validity of the contract.Based on the analysis of the problems,we can see the defects of the logic confusion in the design of competition rules,which fail to accurately distinguish between in-service and out-of-service non-competition and to deal with the relationship between non-competition and confidentiality obligations.Both the duty of confidentiality and the duty of in-service non-competition belong to the content of the duty of loyalty which should be undertaken by the employee.The out-of-service non-competition,which comes into play after the termination of the labor relationship,has lost the basis of the duty of loyalty,and its value is based on the legitimate interests of the former employer.The legal status of out-of-service non-competition should be confirmed separately and the rules should be set up by legislation.Based on the text analysis and value exploration of rules,the main task of this paper is to make specific responses to the major doubts,and restate or clarify the logical system and theoretical basis of the rules.