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Determination on Obligation of Post-job Competing Prohibition

Author: ChenHongLei
Tutor: FengYanJun
School: Jilin University
Course: Economic Law
Keywords: Post - employment non-compete obligation Noncompete agreement Liquidated damages Labor Contract Law
CLC: D922.5
Type: Master's thesis
Year: 2011
Downloads: 87
Quote: 1
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Abstract

The noncompete is aware of or master the trade secrets of the laborers in the company during his tenure can not be part-time at a competing company or engage in a competitive business in a specific period of time after his departure, nor practitioners in the region at a competitive company or compete nature of business activities. The noncompete is divided into statutory noncompete and conventions noncompete this article with a four-part convention the noncompete basic problem is more comprehensive analysis and research. The first part of the question presented. Two typical cases, that \recognized standard for the validity of a noncompete agreement. The second part of the analysis of the non-compete obligation to determine the key premise of - the effectiveness of the non-compete agreement. This part are discussed from two aspects, the first analysis of the non-compete agreement, including the agency cost theory, the principle of good faith, the principle of fair, reasonable restrictions of competition principles and the principle of public order and good morals. The agency cost theory is the economics of the noncompete agreement based on the principle of good faith, the principle of fairness and the principle of public order and good morals Law basis of the noncompete agreement, reasonable limitation of the principle of competition is an important theoretical basis of the non-compete agreement. Followed by analysis of the effectiveness of the non-compete agreement elements, including the purpose of the non-competition, applies to objects, the applicable time limit applies to geographical and economic compensation, and a detailed analysis of the various elements of a reasonable standard. Only the elements of the noncompete agreement effectiveness reasonable, lawful and not contrary to the public interest, the workers after the eradication of the labor relations may assume a non-compete obligations. After the departure of the third part of the non-compete obligation to determine the specific issues. This part of the reasons for departure are divided into several situations, analysis workers noncompete obligations each case respectively. Reasons for departure, including laborers resignation, the employer dismissed the expiry of the term of the contract and the employer operating conditions change. First of all, the resignation is divided into voluntary resignation and was forced to resign. Voluntary resignation, the laborers of course, bear the non-compete obligation; forced to resign, the workers no longer bear the non-compete obligation. Secondly, the dismissal can be divided the fault resistance dismissed, a non-fault dismissal economic layoffs and illegal dismissal. I believe that in addition to the non-fault dismissal, workers must bear the non-compete obligation. Non-fault dismissal, the worker whether he will take the non-compete obligation agreed upon by the parties, there is no agreement, the employee does not bear the non-compete obligation. Again, the expiration of the contract is the most normal labor relations terminate the noncompete obligations of laborers are not affected when the contract expires, the need to continue to bear. Finally, the employer's business situation changes, including the merger or division of the employer, the termination or dissolution and diverted or displaced, adhere to the principle that the employer in this case, whether insurable interest insurable need. Merger or division of the employer, the rights and obligations by the following units withstand non-compete obligations of workers will not be affected; termination, dissolution, diverted or displaced due to interest entities no longer exist or no insurable interests of laborers do not need to continue to bear the non-compete obligation. The fourth part of the legal responsibility of the non-compete obligation the decision problem. First, discusses the main parties in violation of non-compete obligations should bear legal responsibility, focusing on the civil liability of the workers. With liability forms include: stop the infringement, the payment of liquidated damages, damages and classified responsibility. Secondly, elaborated relationship bear noncompete obligations and liquidated damages. I believe that the workers no longer bear the non-compete obligation after the payment of liquidated damages, but in order to protect the significant interests of the employer or both parties have expressly agreed, the workers should continue to bear the non-compete obligation.

Determination on Obligation of Post-job Competing Prohibition

Abstract

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