论劳动合同法中的竞业限制制度

发布时间：2018-03-16 09:17

本文选题：竞业限制　切入点：择业自由权　出处：《上海师范大学》2016年硕士论文　论文类型：学位论文

【摘要】：随着我国市场经济的飞速发展,形成了日益激烈的市场竞争环境。用人单位为了在残酷的竞争中求得生存,与劳动者签订保密协议,体现了用人单位为了维护自身的利益采取的种种方法。竞业限制制度在我国实行的时间并不长,但被很多用人单位视为能够有效保护商业秘密及其竞争地位的方法,因此很多用人单位在劳动者入职初期便与其签订了竞业限制协议,力图在劳动者将来离职时用人单位的商业秘密能不受到侵犯。但竞业限制制度在维护用人单位利益的同时,由于劳动者与用人单位在法律关系上天然的不对等,因此同时给劳动者带来了诸多困扰,在劳动者离开用人单位后,在其再就业的道路上添置了障碍,比如以一技之长为其就业关键的劳动者,很可能要另行开辟职业道路,或举家搬迁到不影响原用人单位竞争范围的地方工作,这对劳动者不仅是择业自由权的限制,更是基本生存权的限制,给劳动者就业带来了巨大的压力,长期以往也会影响社会的安定及和谐。本文试图从分析竞业限制制度的性质,我国竞业限制制度发展的过程,结合竞业限制制度现状,提出竞业限制制度可以完善的地方及切实可行性建议。本文首先分析了竞业限制制度的概念及与其他在理论中及司法实践中易混淆的概念相互之间的区别及联系,阐述了竞业限制制度的无可替代性及重要性。然后,分析了竞业限制制度的性质,说明其与劳动法上其他规范用人单位与劳动者之间的制度之间的区别;而正是竞业限制制度的独特性,使得立法者在制定相关规定时既要考虑到用人单位与劳动者之间的劳动关系,又要考虑到在双方竞业限制协议生效时劳动者已离开原用人单位双方解除劳动关系的事实,体现了竞业限制制度的内在复杂性。第三,分析了《劳动合同法》颁布前后竞业限制制度的变化,阐述了我国竞业限制制度在现阶段的规定,指出了《劳动合同法》在竞业限制制度方面的进步。第四,从竞业限制的限制范围、竞业限制的经济补偿金问题及竞业限制的违约金问题等三个方面具体阐述了我国现阶段在立法上有关竞业限制制度部分的欠缺。第五,结合国内现有案例及借鉴国外各国的规定,提出完善竞业限制制度各个方面的立法建议,如立法上应确定合理的竞业限制地域范围及期限,明确竞业限制补偿金是竞业限制协议的生效条款,明确用人单位违法解除在竞业限制协议中的责任,用人单位未及时支付补偿金时劳动者可取得履行抗辩权及需要明确新用人单位在劳动者违反竞业限制协议中的责任。
[Abstract]:With the rapid development of the market economy in our country, the increasingly fierce market competition environment has been formed. In order to survive in the cruel competition, the employer has signed a confidentiality agreement with the laborer. It reflects the various methods adopted by employers to safeguard their own interests. The system of restriction on competition has not been practiced for a long time in our country, but it is regarded by many employers as a way to effectively protect trade secrets and their competitive position. Therefore, many employers have signed a competition restriction agreement with workers at the beginning of their employment, in an effort to protect the employer's trade secrets from infringement when they leave their jobs in the future. However, while safeguarding the interests of the employer, the system of restriction on competition is not only in the interests of the employer, but also in the interests of the employer. Due to the naturally unequal legal relationship between the laborer and the employing unit, it brings many troubles to the laborer at the same time. After the laborer leaves the employer, he adds obstacles to his re-employment. For example, workers who take one skill as the key to their employment are likely to open up other career paths or move their families to places that do not affect the competitive scope of the original employer. This is not only a restriction on the workers' right to freedom of choice of employment. This paper tries to analyze the nature of the system and the process of the development of the system of restriction of non-competition in China, because of the limitation of the basic right of existence, which brings great pressure to the employment of the laborer, and will also affect the stability and harmony of the society in the long term. Combining with the current situation of the system of restriction of competition, This paper first analyzes the concept of the system and the differences and relations between the concept of the system and other confusing concepts in theory and judicial practice. This paper expounds the irreplaceable nature and importance of the system of restriction of competition. Then, it analyzes the nature of the system of restriction of competition, and explains the difference between the system between the employer and the laborer in the labor law. It is precisely the uniqueness of the system of restriction on competition that makes legislators take into account the labor relations between employers and workers when formulating relevant regulations. It is also necessary to consider the fact that the laborer has left the original employer and the labor relationship has been lifted by the entry into force of the competition restriction agreement between the two parties, which reflects the inherent complexity of the system of competition restrictions. Third, This paper analyzes on the changes of the system of the restriction of competition before and after the promulgation of the Labor contract Law, expounds the provisions of the system of restriction of competition in China at the present stage, and points out the progress of the system of the restriction of competition in the Labor contract Law. 4th, From the three aspects of the restriction scope of competition, the problem of economic compensation and the penalty for breach of contract, the author expounds the deficiency of the system of the restriction of competition in the legislation of our country at this stage. 5th. Combining with the existing domestic cases and drawing lessons from the provisions of foreign countries, this paper puts forward some legislative suggestions for perfecting the system of restricting competition, such as, in legislation, the reasonable scope and time limit of competition should be determined. It is clear that compensation for the restriction of competition is the effective clause of the agreement, and it is clear that the employer is illegally relieved of the responsibility in the agreement on the restriction of competition. When the employer fails to pay the compensation in time, the laborer can obtain the right to fulfill the defense and need to make clear the responsibility of the new employer in the violation of the limitation agreement.
【学位授予单位】：上海师范大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D922.52

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