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Post-employment noncompete reasonableness Analysis

Author: ZhangHuiQin
Tutor: Dong??
School: East China University of Politics and Law
Course: Legal
Keywords: Business secret Brain drain Covenants not to compete Reasonableness Standard
CLC: D922.291.91
Type: Master's thesis
Year: 2006
Downloads: 218
Quote: 4
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Abstract


In recent years, the duty of employee“not to compete”is already a little bit hot topic for job-field personage’s leisure time. It is an undisputable fact that employee’s malice job-hopping has become the main outlet of business secret’s loss. The personification of business secret makes it difficult to put proof against the employee’s civil liability for tort or liability for breach of contract according to Law against Competition. Therefore, many employ units feel rather helpless about that. Duty of employee“not to compete”is an effective method to protect business secret by taking precautions against it in order to reduce the chance that employees misuse confidential information. But it is controversial because it is believed to violate employees’right to choice of occupation.This paper is focus on the comparison for our country’s existing local regulations, by which we find that there are two different attitudes to the duty of employee’s“not to compete”,which are the regulation should protect the employ units’more or employees’benefit more. But the precondition is both attitudes hold affirmative attitude to this system. However, we should pay attention to that, during the labor contract law making process, a kind of negative voice appeared and this kind of voice still occupied a predominant position, which is to impose very high and strict standard obligation on employ units. Scholar are shocked to find that the tendency of the draft to forbid duty of employee“not to compete”in disguised form doesn’t go with the basic national policies to encourage science and technology innovation and to protect intelligent property right.This paper sets forth the rationality of employee’s duty not to compete from point of view that employee’s duty not to compete is applicable inevitably. The man’s natural character to get on benefit will lead to social community irrational behavior and put society into out-of-order if the law fails to inhibit the arbitrarily behavioral persons. Certainly, the system of employee’s duty not to compete is not perfect, in that conflict of rights is objectively existent, hence this paper discusses the way to solve conflict of rights and makes a conclusion that is to balance two parties’benefit and achieve win-win situation, from the angle of collision between labor right and property right. This kind theoretical argumentation got the certificate of all countries history development and practice. Worldwide, most country hold affirmative or at least tolerant attitude to employee’s duty not to compete. It is possible that many of them had experienced the negative process of negation. As for how to balance two parties, this paper believes it accords with principle of social benefit’s maximization to balance employee’s“not to compete”sacrifice by compensation principle. This paper lastly discuss system of employee’s duty not to compete is oriented from labor contract but independent from labor contract, and makes a conclusion that a social law threefold mode should be adopted to adjust this system, and then put forward the constitution of rationality standard to explicit the law bottom line provision on“what should do”, and what the employ units and employees can do. All in one word, as for the system of employee’s duty not to complete, we should try to balance two parties’benefit in order to achieve win-win situation.

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