离职后竞业禁止合理性浅析

发布时间：2018-02-10 06:41

本文关键词： 商业秘密人才流动竞业禁止合理性标准　出处：《华东政法学院》2006年硕士论文　论文类型：学位论文

【摘要】： 近年来,竞业限制已是职场人士茶余饭后谈论的热点话题。员工的恶意“跳槽”行为成了企业商业秘密流失的主渠道,这已是不争的事实。商业秘密人格化使得依据反不正当竞争法等来追究员工的民事侵权责任或违约责任存在举证困难等弊病,很多企业只能望密兴叹。通过事前防范以从根本上减少员工侵害商业秘密的机会的离职后竞业禁止倒不失为一种比较有效的商业秘密保护方法,但因其“涉嫌”妨碍劳动者的择业权而备受争议。本文通过对我国现有立方立法的比较,发现各地立法虽对于离职后竞业禁止该多保护劳动者一点还是多保护用人单位一点,存在分歧,但基本还是肯定离职后竞业禁止这一制度的。值得注意的倒是劳动合同法的立法过程中,出现了一种否定的声音,而且这种声音还占据了主导地位,对用人单位课以了极高标准的义务,学者及实务界有识之士不禁惊呼,草案变相否定离职后竞业禁止的倾向与我国鼓励科技创新,保护知识产权的基本国策不符。人趋利避害的本性,使得如果法律不对任意行为的人加以约束,必然导致社会群体的非理性行为,使社会陷入无序竞争的冲突状态,本文从离职后竞业禁止产生的必然性角度阐述了离职后竞业禁止存在的合理性。当然离职后竞业禁止并不是完美无缺的,权利的冲突是客观存在的,于是从劳动权与财产权碰撞的角度,探索了权利冲突解决的办法,得出了共同抑制,实现双赢的结论。此种理论上的论证也得到了各国历史发展和现实实践的证明,从世界各国来看,基本上对离职后竞业禁止还是持肯定或基本的容忍态度的,当然它们很多可能也都是经历了否定之否定的过程的。接下来的问题就是,如何共同抑制,本文认为,通过补偿法则的引入来平衡劳动者作出的不竞业牺牲,符合社会利益最大化原则。本文最后从离职后竞业禁止源于劳动合同又独立于劳动合同的角度,得出了对于离职后竞业禁止应采用社会法的三重调整模式,并进而提出了合理性标准设置的建议,明确了法律的底线性规定“应为什么”,用人单位与劳动者“可为什么”的界限。总之,对于竞业限制应该做到尽量平衡双方的利益,做到双赢。
[Abstract]:In recent years, competition restrictions have become a hot topic for professionals to talk about after dinner. The malicious "job-hopping" behavior of employees has become the main channel for the loss of business secrets. This is an indisputable fact. The personalization of trade secrets makes it difficult for employees to be investigated for civil tort liability or breach of contract liability according to the anti-unfair competition law. Many enterprises can only hope to be happy. The prohibition of post-employment competition, which prevents employees from infringing on trade secrets in a fundamental way by taking precautions in advance, is a more effective way to protect trade secrets. But it is controversial because it is suspected of obstructing workers' right to choose a job. Through a comparison of the existing cubic legislation in China, this paper finds that there are differences between local legislations on whether to protect more workers or employers after termination of competition. However, it is basically certain that the system of non-competition after employment is prohibited. What is noteworthy is that in the legislative process of labor contract law, there has been a negative voice, and this kind of voice has also occupied a dominant position. With the extremely high standard obligation to the unit of choose and employ persons, scholars and people of insight in practice can not help exclaiming that the tendency of the draft to deny the prohibition of post-employment competition in disguise is inconsistent with the basic state policy of encouraging scientific and technological innovation and protecting intellectual property rights in our country. The nature of people seeking advantages and avoiding harm makes it inevitable that if the law does not restrict the arbitrary behavior, it will inevitably lead to the irrational behavior of social groups and lead the society into a state of conflict of disorderly competition. From the point of view of the inevitability of the prohibition of post-employment competition, this paper expounds the rationality of the existence of the ban on post-employment competition. Of course, the ban on post-employment competition is not perfect, and the conflict of rights exists objectively. Therefore, from the angle of the collision of labor right and property right, this paper explores the solution to the conflict of rights, and draws the conclusion that we can jointly restrain and realize the win-win situation. This kind of theoretical argument has also been proved by the historical development and practical practice of various countries. From the point of view of various countries in the world, there is basically a positive or basic tolerance attitude towards the prohibition of post-employment competition. Of course, many of them may have gone through the process of negation. The next question is, how to curb it together? In this paper, the author thinks that it is in line with the principle of maximization of social interests to balance the non-competition sacrifice made by the laborer through the introduction of compensation rule. Finally, from the angle of the labor contract and independence from the labor contract, the article concludes that the prohibition of post-employment competition is based on the labor contract. The triple adjustment mode of social law should be adopted for the prohibition of post-employment competition, and the suggestion of setting reasonable standard is put forward. It clarifies the bottom line of law "what should be", and the boundary between employer and laborer "why". In a word, the restriction of competition should balance the interests of both sides as far as possible and achieve win-win situation.
【学位授予单位】：华东政法学院
【学位级别】：硕士
【学位授予年份】：2006
【分类号】：D922.5;D922.291.91

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