Study On Generalized Application Of Non-Competition Agreement

With the rapid development of socialist market economy,trade secrets are becoming increasingly crucial for the survival and development of enterprises.Noncompetition agreement is an important way to protect business secrets,which is conducive to shaping a fair market competition order.However,once the noncompetition agreement is overused,it may infringe the basic rights and interests of employees,hinder the free flow of talents,and then affect the innovation and development of the whole society,which makes it deviate from its due system value orientation.Taking non-competition agreement as the topic,this paper discusses its system basis,generalized application problems,roots of problems and countermeasures to solve them,which is divided into four parts:The first chapter mainly studies the institutional basis of the non-competition agreement,makes an overview and classification.It emphatically summarizes the dual attributes of civil relationship and labor relationship,expounds the theoretical basis of contract freedom,honesty and credit,loyalty obligation,and points out its system value:efficient protection of the employer’s business secret,compulsory protection of the legitimate rights and interests of employees and reasonable restrictions on free competition.On the basis of balancing the rights of both employer and employee,fair competition order and free flow of talents,the corresponding value orientation is put forward.The second chapter puts forward the problems of generalized application of non-competition agreement by means of empirical research,including the subject,region,object scope of non-competition and generalization of signing.The third chapter explores the causes of the above problems.From the perspective of interpretative theory,ejusdem generis cannot clarify the scope of the subject,and the identification standards of trade secrets are not uniform,which leads to the generalization of the subject.Crude legislation leads to “formalistic” judicial selection,and constraints on employers are lacking in practice,which leads to the generalization of the scope and signing.The fourth chapter puts forward the countermeasures,drawing lessons from foreign experience and other department laws,in legislation the enumerating items should be increased and the judgment criteria of trade secrets should be stipulated to help determine the scope of non-competition subject;Judicially,the concept of “relevant market” and the Inevitable Disclosure Doctrine should be introduced in order to change the judicial position from “formalism” to “substance”.strengthen the restriction on the employer to sign the non-competition.It is necessary to strengthen the constraints on employers by encouraging the investigation of the joint liability of the employer and referring to the “Right Abuse Prohibition”.