美国医生离职后竞业禁止制度探究
发布时间：2018-09-11 12:20
【摘要】：美国竞业禁止制度经过长期发展，已经渐成体系，对各种判断标准进行细化规定，且区分行业对竞业禁止协议进行区别对待。医生竞业禁止协议在美国就因为医生行业的特殊性而在各州予以另行规定。在美国，各州普遍都禁止律师竞业禁止协议，但是对于医生竞业禁止协议各州态度不一，有的州认为该协议本身即是无效，而有的州则给予特殊限制，而绝大多数州则认为应该采用“合理标准”判断医生竞业禁止协议的有效性和可执行性。 在我国由于医生流动制度及医院人事制度等的问题，极大的限制了医生的流动，医生竞业禁止协议的案例更是绝无仅有，有关医生竞业禁止的立法规定或者是学术探讨更是少之甚少。随着我国经济发展及对医生流动制度的改进，必然伴随着更多的医生流动，而因此可能导致的医生竞业禁止问题将应然而生。 本文拟从以下三个方面入手，通过探究美国各州对医生竞业禁止协议迥然不同的做法，查找美国各州区别对待律师竞业禁止协议与医生竞业禁止协议的内在原因，分析判断医生竞业禁止协议的各项标准，并在此基础上，提出能够更好平衡雇主与雇员医生及其病人之间利益的解决方法，以期能够吸收借鉴相关判断标准指导我国医生竞业禁止制度的发展。 第一章主要是对美国医生竞业禁止协议的立法及司法实践进行介绍。分为两个部分。第一部分介绍美国各州对医生竞业禁止协议的立法及司法现状，第二部分主要是对立法特别规定医生竞业禁止协议的理论基础进行剖析。本章通过各州立法比较、案例比较，描述各州医生竞业禁止的立法司法现状，而后又从医生行业的特殊性着手，论述区别对待医生竞业禁止的法律基础、现实基础等。 第二章主要是对美国“合理标准”进行论述，详细介绍了美国“合理标准”的具体考量因素，结合相关案例，对“合理标准”在医生竞业禁止中的具体适用进行介绍。 第三章先是评析了我国竞业禁止协议立法及司法现状，及该立法及司法在医生行业中的适用情况，然后分析我国对于医生竞业禁止协议的立法不足，以及我国司法实践中关于医生竞业禁止协议的相关案例，最后论述了我国对美国医生竞业禁止协议的立法及司法实践的借鉴与吸收。 综上所述，笔者是希望通过本文，通过分析美国各州对医生竞业禁止协议的立法及司法态度，同时结合大多数州适用的“合理标准”，以期通过分析对医生竞业禁止协议在美国的现状和发展状况，合理分析美国立法及司法实践的各种做法，，从中借鉴或者吸收适合我国医生行业发展的相关制度，以指导我国医疗行业健康发展的同时，平衡好雇主、医生与病人之间的利益关系。
[Abstract]:After a long period of development, the American non-compete system has gradually become a system, which specifies the various judgment criteria, and distinguishes the industry from the non-compete agreement. Doctor non-competition agreement in the United States because of the particularity of the doctor industry in the state to be separately stipulated. In the United States, states generally prohibit a lawyer's non-compete agreement, but there are different attitudes toward a doctor's non-compete agreement. Some states consider the agreement to be null and void, while others impose special restrictions. Most states believe that a "reasonable standard" should be used to judge the effectiveness and enforceability of a doctor's non-compete agreement. In our country, due to the problems of doctors' mobility system and hospital personnel system, the mobility of doctors is greatly restricted, and the cases of doctors' non-competition agreement are even more rare. There are few legislative provisions or academic discussions on the prohibition of competition among doctors. With the development of our country's economy and the improvement of the system of doctors' mobility, more doctors' mobility will inevitably accompany, and the problem of the prohibition of doctors' competition will arise. This paper attempts to explore the different approaches of the American states to the non-compete agreements of doctors from the following three aspects, and to find out the internal reasons why the States in the United States treat lawyers' non-compete agreements differently from doctors' non-compete agreements. On the basis of analyzing and judging the criteria of doctors' non-competition agreement, this paper proposes a solution which can better balance the interests of the employer and the employee doctors and their patients. In order to absorb and draw lessons from the relevant criteria to guide the development of non-competitive system of doctors in China. The first chapter mainly introduces the legislation and judicial practice of American doctor non-compete agreement. It is divided into two parts. The first part introduces the current legislation and judicial status of the non-compete agreements for doctors in the United States. The second part mainly analyzes the theoretical basis of the special provisions of the legislation on the non-compete agreements of doctors. In this chapter, through the comparison of state legislation and case comparison, the author describes the legislative and judicial status quo of the prohibition of doctors' competition, and then discusses the legal basis and realistic basis of distinguishing between doctors' competition prohibition from the particularity of doctors' profession. The second chapter mainly discusses the "reasonable standard" of the United States, introduces in detail the specific consideration factors of the "reasonable standard" of the United States, combined with the relevant cases, introduces the specific application of the "reasonable standard" in the prohibition of doctor competition. The third chapter first analyzes the current situation of the legislation and judicature of the non-compete agreement in China, and the application of the legislation and the judicature in the medical profession, and then analyzes the lack of legislation on the non-compete agreement of doctors in our country. Finally, it discusses the reference and absorption of the legislation and judicial practice of American doctors' non-compete agreement in our country. To sum up, the author hopes that through this article, through the analysis of the legislative and judicial attitude of the United States to the non-compete agreement of doctors, and at the same time combining with the "reasonable standards" applied by most states, Through the analysis of the current situation and development of the non-compete agreement of doctors in the United States, and the reasonable analysis of various practices in the legislation and judicial practice of the United States, we can draw lessons from or absorb the relevant systems suitable for the development of the medical profession in our country. In order to guide the healthy development of the medical industry, balance the interests of employers, doctors and patients.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D971.2;DD912.1
本文编号：2236671
[Abstract]:After a long period of development, the American non-compete system has gradually become a system, which specifies the various judgment criteria, and distinguishes the industry from the non-compete agreement. Doctor non-competition agreement in the United States because of the particularity of the doctor industry in the state to be separately stipulated. In the United States, states generally prohibit a lawyer's non-compete agreement, but there are different attitudes toward a doctor's non-compete agreement. Some states consider the agreement to be null and void, while others impose special restrictions. Most states believe that a "reasonable standard" should be used to judge the effectiveness and enforceability of a doctor's non-compete agreement. In our country, due to the problems of doctors' mobility system and hospital personnel system, the mobility of doctors is greatly restricted, and the cases of doctors' non-competition agreement are even more rare. There are few legislative provisions or academic discussions on the prohibition of competition among doctors. With the development of our country's economy and the improvement of the system of doctors' mobility, more doctors' mobility will inevitably accompany, and the problem of the prohibition of doctors' competition will arise. This paper attempts to explore the different approaches of the American states to the non-compete agreements of doctors from the following three aspects, and to find out the internal reasons why the States in the United States treat lawyers' non-compete agreements differently from doctors' non-compete agreements. On the basis of analyzing and judging the criteria of doctors' non-competition agreement, this paper proposes a solution which can better balance the interests of the employer and the employee doctors and their patients. In order to absorb and draw lessons from the relevant criteria to guide the development of non-competitive system of doctors in China. The first chapter mainly introduces the legislation and judicial practice of American doctor non-compete agreement. It is divided into two parts. The first part introduces the current legislation and judicial status of the non-compete agreements for doctors in the United States. The second part mainly analyzes the theoretical basis of the special provisions of the legislation on the non-compete agreements of doctors. In this chapter, through the comparison of state legislation and case comparison, the author describes the legislative and judicial status quo of the prohibition of doctors' competition, and then discusses the legal basis and realistic basis of distinguishing between doctors' competition prohibition from the particularity of doctors' profession. The second chapter mainly discusses the "reasonable standard" of the United States, introduces in detail the specific consideration factors of the "reasonable standard" of the United States, combined with the relevant cases, introduces the specific application of the "reasonable standard" in the prohibition of doctor competition. The third chapter first analyzes the current situation of the legislation and judicature of the non-compete agreement in China, and the application of the legislation and the judicature in the medical profession, and then analyzes the lack of legislation on the non-compete agreement of doctors in our country. Finally, it discusses the reference and absorption of the legislation and judicial practice of American doctors' non-compete agreement in our country. To sum up, the author hopes that through this article, through the analysis of the legislative and judicial attitude of the United States to the non-compete agreement of doctors, and at the same time combining with the "reasonable standards" applied by most states, Through the analysis of the current situation and development of the non-compete agreement of doctors in the United States, and the reasonable analysis of various practices in the legislation and judicial practice of the United States, we can draw lessons from or absorb the relevant systems suitable for the development of the medical profession in our country. In order to guide the healthy development of the medical industry, balance the interests of employers, doctors and patients.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D971.2;DD912.1
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1 纪晓昕;析美国商业秘密保护中的竞业禁止制度——从判例看美国竞业禁止制度的发展动态[J];电子知识产权;2004年01期
相关硕士学位论文 前1条
1 田维娜;美国法上离职后竞业禁止制度研究[D];厦门大学;2007年
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