约定竞业禁止的法律效力研究
发布时间：2018-11-10 21:17
【摘要】： 约定竞业禁止是市场经济发达国家雇主较广泛采用的保护其商业秘密的法律手段。该手段对于净化市场环境、维护公平的竞争秩序、提高雇主在人才和技术上的投入积极性无疑具有重要的作用。但由于它不仅与雇主的利益有关,而且也关涉到雇员的工作权、自由权乃至生存权,因而如何协调雇主与雇员的利益冲突、消除各方不合理的行为,成为劳动合同法领域研究的新课题。本文试从四个方面对约定竞业禁止的法律效力的有关内容作出探讨。 首先,文章讨论了约定竞业禁止的概念及法律属性,在阐述约定竞业禁止基本概念的基础上;分析了约定竞业禁止的法律属性:约定竞业禁止兼具劳动法、商业秘密保护法和反不正当竞争法性质;约定竞业禁止属于社会法范畴。 其次,文章讨论了约定竞业禁止产生的法理基础,阐述了诚信原则和忠实义务是约定竞业禁止产生的理论基础,约定竞业禁止是权利、义务与责任的统一及合理限制竞争。 再次,文章分析了约定竞业禁止的法律效力,在探讨约定竞业禁止法律效力的争论,约定竞业禁止与相关权利的冲突表现的基础上,提出审慎认定竞业禁止法律效力的观点。 最后,文章重点研究了竞业禁止协议的效力认定,在阐明认定竞业禁止协议效力的意义后,从竞业禁止协议的目的、竞业禁止的对象范围、业务范围、地域范围、期限、补偿等方面分析了竞业禁止协议的合法性、合理性等原则并提出了效力认定的具体标准。 文章的最大特点是通过理论联系实际的方法在对约定竞业禁止的法律属性、法理基础、法律效力进行分析研究的基础上,提出了竞业禁止协议的效力认定标准,具有一定的理论价值和现实意义。
[Abstract]:The prohibition of non-competition is widely used by employers in developed countries to protect their trade secrets. This method is of great importance to purify the market environment, maintain fair competition order and improve the enthusiasm of employers in talent and technology. However, since it is not only related to the interests of the employer, but also to the employee's right to work, liberty and even survival, how to reconcile the conflict of interest between the employer and the employee and eliminate the unreasonable behavior of all parties, It has become a new topic in the field of labor contract law. This article tries to discuss the legal effect of the prohibition of contract competition from four aspects. First of all, the article discusses the concept and legal attributes of the prohibition of contractual non-competition, on the basis of elaborating the basic concept of the prohibition of contractual non-competition; This paper analyzes the legal attributes of the prohibition of contractual competition: the prohibition of contractual competition has the nature of labor law, trade secret protection law and anti-unfair competition law, and the prohibition of contractual competition belongs to the category of social law. Secondly, the article discusses the legal basis of the prohibition of contract competition, expounds that the principle of good faith and the duty of loyalty are the theoretical basis of the prohibition of contract competition, and that the prohibition of contract competition is the unity of rights, obligations and responsibilities, and reasonable restriction of competition. Thirdly, the article analyzes the legal effect of the prohibition of contract non-competition, discusses the dispute of the legal effect of the prohibition of contractual competition, and puts forward the viewpoint of prudently determining the legal effect of the prohibition of competition on the basis of the conflict between the prohibition of contract and the relevant rights. Finally, the article focuses on the validity of the non-compete agreement, after clarifying the significance of the non-compete agreement, from the purpose of the non-compete agreement, the scope of the object, business scope, geographical scope, duration, This paper analyzes the legality and rationality of non-compete agreement and puts forward the criterion of validity. The biggest characteristic of this article is that through the method of combining theory with practice, on the basis of analyzing and studying the legal attribute, legal theory foundation and legal effect of the prohibition of non-competition, the paper puts forward the criterion of determining the validity of the non-compete agreement. It has certain theoretical value and practical significance.
【学位授予单位】：对外经济贸易大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D912.29
[Abstract]:The prohibition of non-competition is widely used by employers in developed countries to protect their trade secrets. This method is of great importance to purify the market environment, maintain fair competition order and improve the enthusiasm of employers in talent and technology. However, since it is not only related to the interests of the employer, but also to the employee's right to work, liberty and even survival, how to reconcile the conflict of interest between the employer and the employee and eliminate the unreasonable behavior of all parties, It has become a new topic in the field of labor contract law. This article tries to discuss the legal effect of the prohibition of contract competition from four aspects. First of all, the article discusses the concept and legal attributes of the prohibition of contractual non-competition, on the basis of elaborating the basic concept of the prohibition of contractual non-competition; This paper analyzes the legal attributes of the prohibition of contractual competition: the prohibition of contractual competition has the nature of labor law, trade secret protection law and anti-unfair competition law, and the prohibition of contractual competition belongs to the category of social law. Secondly, the article discusses the legal basis of the prohibition of contract competition, expounds that the principle of good faith and the duty of loyalty are the theoretical basis of the prohibition of contract competition, and that the prohibition of contract competition is the unity of rights, obligations and responsibilities, and reasonable restriction of competition. Thirdly, the article analyzes the legal effect of the prohibition of contract non-competition, discusses the dispute of the legal effect of the prohibition of contractual competition, and puts forward the viewpoint of prudently determining the legal effect of the prohibition of competition on the basis of the conflict between the prohibition of contract and the relevant rights. Finally, the article focuses on the validity of the non-compete agreement, after clarifying the significance of the non-compete agreement, from the purpose of the non-compete agreement, the scope of the object, business scope, geographical scope, duration, This paper analyzes the legality and rationality of non-compete agreement and puts forward the criterion of validity. The biggest characteristic of this article is that through the method of combining theory with practice, on the basis of analyzing and studying the legal attribute, legal theory foundation and legal effect of the prohibition of non-competition, the paper puts forward the criterion of determining the validity of the non-compete agreement. It has certain theoretical value and practical significance.
【学位授予单位】：对外经济贸易大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D912.29
【引证文献】
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