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On Prohibition of Competition
Jiangsu Liu Hong Law Firm Pan Jianwu
Abstract: Nowadays, social and trade secrets are more and more important to enterprises. As the prohibition of competition is of great significance to the protection of trade secrets, it also attracts people's attention. However, the prohibition of competition is a double-edged sword. The right to protect the trade secrets, the use of bad will hurt the rights of workers, therefore, it is necessary to do theoretical research, this article will be prohibited from the concept of competition, content and other aspects of the prohibition of doing business in-depth exposition.
Key words: non - competition prohibits trade secrets free exercise
With the deepening of China's market economy reform, on the one hand, the allocation of labor resources from the original plan to the market allocation, talent flow is very common. On the other hand, due to the further expansion of business autonomy, while the temptation of profits also makes some units keen on high salaries "dig talent." All of which have exacerbated the loss of the rights of business owners, therefore, more and more enterprises and employees signed a non-competition agreement, but in practice, companies tend to take an over-protection approach, a serious violation of the workers' freedom of choice The This article will do a simple discussion on the prohibition of competition.
First, the non-competition concept, classification and characteristics
(A) the concept of non-competition
Non-competition, non-competition, non-competition, non-competition, non-competition. For the concept of non-competition, many scholars have argued that some scholars believe that the obligor may not be self-employed or for others to operate the same or similar business as their office or the original service enterprises. (1) If the prohibition of competition is in accordance with the provisions of the law or the agreement of the parties, the obligor shall not engage in competitive business activities for the purpose of obtaining economic benefits, which are similar or closely connected with the right holder, within a certain period or period of time. ② I believe that the term non-competition from the semantic point of view is prohibited in the competitive industry. It refers to the parties to the civil legal relationship, according to the contract or the law provides that a party has the right and the other party is obliged, the right holder may require the obligor within a certain period of time shall not engage in the same business, similar or related business, That is, the right to restrict the obligation to conduct their own competitive behavior.
(B) the classification of non-competition
According to different standards, the prohibition of competition can have a lot of classification methods, mainly in the following categories, to non-compete obligations arising from the basis of the standard, the prohibition of competition can be divided into statutory and non-compete and non- The former is clearly defined by law, the latter for the parties through the contract. The prohibition of competition is also divided into the same industry competition and non-compete business competition for the two, the former refers to the prohibition of competition and the right person's business is the same or similar; the latter It is related to the business of the owner, or the obligor is the partner of the unlimited liability shareholder or partnership business of other enterprises, as this will also affect the interests of the original enterprise. To prohibit the obligations of the non-compete period as a standard, the prohibition of competition is also active in the prohibition of competition and leave the prohibition of competition, the former refers to the workers in the labor relationship between the prohibition of competition, the legal provisions of the legal competition prohibited Is a prohibition on duty, which does not require agreement is the basic obligations of employees. The latter refers to the workers in the labor relations with the enterprise after the termination of the prohibition of competition. Workers after the separation of the prohibition of competition mainly refers to the enterprise and the workers signed a non-compete contract, this article called the industry ban, mainly refers to the narrow sense of the prohibition and resignation.
(C) the legal characteristics of non-competition
Combined with the views of scholars. Non-competition mainly has the following characteristics:
1. Non-competition is a specific civil relationship.
2. The obligation of non-competition is derived from the law or the parties agree.
3. Prohibited by the non-competition is a non-obligation, is a negative obligation, the main body must be a certain kind of behavior to protect the interests of the rights of people.
4. Prohibited by itself is also restricted. As a result of the prohibition of competition is a kind of restrictions on individual freedom, therefore, national legislation generally prohibit the scope of application of the competition in time and space to make restrictions.
5. Prohibited by the non-competition behavior, in a broad sense is a kind of unfair competition.
Second, the inevitability of non - competition and its theoretical basis
The prohibition of competition as a legal system, the earliest provisions in the civil law of the agency system, aimed at using the law to prevent the agents of the interests of the agent damage. In modern times, the non - competition has been extended to the directors and managers of the company 's law. On the one hand, from the human rights point of view, as scholars have said, the right to work is a basic human rights of citizens, and is one of the most important of the right, that is, the right to life, on the other hand, A human rights. ③ Everyone has the right to the pursuit of happiness, the use of their own knowledge to improve their economic conditions, the national laws generally recognize the right of workers in the law to allow free choice within the scope of their employment. Such as China's "Labor Law" Article III clearly stipulates that "workers enjoy equal employment and the right to choose a career." On the other hand, the operator has the right to dominate its trade secrets, have the right to legal protection, trade secret rights is the incentive mechanism for information innovation. So, how can we better balance this relationship, so that both to protect the business secrets, but also take into account the rationality of the free movement of labor? If the establishment of competition in the labor contract to prohibit the provisions, it means that the law Will be through the restrictions on individual rights and freedoms to achieve the protection of the interests of trade secret rights holders, to maintain fair competition in the market order. So, does the law make a choice between these two contradictory rights to sacrifice the workers' freedom of choice or even the right to work to protect the business secrets of the business, is it contrary to fairness and justice?
As a restrictive system for a particular competitive behavior of a particular subject, its existence must have sufficient theoretical basis and higher institutional value. I believe that the existence of non-competition is the existence of its rationality and inevitability. The scarcity of resources is the common face of human constraints, people can not freely access to economic goods, trade secrets as a kind of intellectual resources is no exception. And the trade secret is very diffuse, low transmission costs, users can not share any cost of the case, enjoy the results of others. On the one hand, the free movement of workers is an inevitable requirement of the market economy, which is conducive to give full play to human potential. Thus, the free movement of laborers has a positive meaning. On the other hand, trade secrets are a kind of spiritual property with economic value. At the same time, trade secrets as a confidential state of technical information and business information, in addition to documents, drawings, disk and other material carrier, the understanding of trade secret workers themselves is an important carrier of the activation. Therefore, the trade secret is likely to flow with the flow of talent. The value of the law must be profitable, the famous American jurist E. Bodenheimer once said: "Each social order is faced with the distribution of rights, limit the scope of rights, so that some rights and other (may be contradictory) rights (P.298) It is not only necessary to measure whether a law is reasonable, it involves the maximization of the protection benefits and the fair and just question in the concept of legal values, and the establishment of the non-compete clause Reasonable. Because the market competition and freedom is the prerequisite for the survival and development of the market economy, it is the soul of the market economy theory. From the macroscopic point of view, the orderly market environment is the fundamental guarantee that the labor right can be realized. From the microscopic point of view, there is the right to have the obligation, the realization of the right to labor to the implementation of the obligations of workers loyalty on the premise that the unlimited expansion of labor rights will lead to the loss of labor. At the same time, the honesty and loyalty obligation is also the employee's obligation to the employer. Therefore, the business secret of the employee who is grasped by the work is naturally obliged to divulge, use and license the employer's trade secret. At the same time, according to the principle of unavoidable use, employees in the process of working for the new employer, unless it has the ability of Superman, the original enterprise information can be separated, otherwise it will inevitably use the original enterprise information. At this point, employees in other competitive enterprises part-time behavior will inevitably bring the inevitable loss to the employer, the law of course, to prohibit such acts. To sum up, the restrictions on the free choice of workers is not only necessary but also reasonable.
Third, the content of non-competition system (purpose, object, limit, compensation)
(A) the purpose of non-competition. The purpose of the prohibition of competition is to protect trade secrets and to maintain fair competition in the market order, rather than to restrict the free movement and the rational flow of talent, if left the "trade secret" the premise, "no competition" clause is undoubtedly become "Overlord terms". Therefore, the implementation of non-compete for the unit must first have a trade secret as a prerequisite, which is prohibited by the legitimate conditions of non-competition agreement, the famous civil law scholar Professor Liang comet that, in essence, the prohibition of competition as a basic condition of the market economy Economic freedom, is a violation of public order and good behavior, ⑤ (p17) only for the protection of trade secrets need, the law in the balance before giving up the protection of personal freedom, to make some restrictions. Therefore, there is no commercial secrets without competition. Second, the non-competition agreement must be reasonable, to determine whether the prohibition of competition is reasonable, there are three main that can not exceed the scope of the employer to protect their legitimate interests, (2) did not cause excessive difficulties to employees, (3) did not harm the public interest. It is legal only to satisfy the above three criteria.
(B) the object of non-competition. From the case of non-competition in the case of non-competition, there is a case where the employing unit, regardless of whether the employee is engaged in the post, the degree of education and whether it is exposed to the trade secrets of the enterprise, signs the non-competition agreement, which results in unnecessary waste of social resources. The workers are also unfair, therefore, clear the object of competition is the primary. The legal non-competition object is generally the company, the senior management of the enterprise, such as China's Article 149 of the Company Law Article 5 provides that: without the shareholders or the shareholders of the General Assembly, the use of his office to facilitate their own or others The Company's business opportunities, self-operated or operated for the same business as any of the companies employed by the Company; Article 88 of the German Joint Stock Company Act provides that members of the Board of Directors and not allowed to do business without permission from the Supervisory Committee shall not be allowed to do so in the course of business The interests of engaging in business activities. The main obligations of the current law of our country are: the directors, managers, general manager, deputy general manager, limited company of the Chinese and foreign joint ventures, the chairman, the manager of the wholly state-owned company, the vice chairman, the manager, the manager All partners. For the prohibition of competition, I believe that enterprises should choose to have the opportunity to contact, understand or master the business secret of the staff and its senior management, technical researchers, financial managers, sales staff, secretarial staff signed a non-competition agreement , In order to achieve the purpose of protecting the core secrets and operating interests of enterprises. For workers who have only ordinary skills and who do not have access to the employer's trade secrets, even if a non-compete agreement has been signed, the business should, in principle, be found to be invalid. To protect this part of the staff of the autonomy and labor rights and even the right to life.
(C) restrictions on non-competition. If laissez-faire companies are free to enter into business prohibitions, they must pay at the expense of the legitimate rights of employees and let the public pay for the individual interests of the enterprise. Therefore, in recognition of the separation of competition in the prohibition of rationality at the same time, it must be restricted to keep it within a reasonable range. Restrictions on non-competition, mainly including three areas that are the domain, time and geographical.
1. In the field of competition. A view that should be based on the scope of business license approved on the basis of the prohibition of employees in the scope of other enterprises engaged in the same or similar work, another view that the company should be based on the business in essence, Prohibit employees engaged in competitive business within the scope of the author that the latter opinion is more reasonable. On the one hand, the company does not necessarily engage in every business in the business license, while the prohibition of competition is a restriction of personal freedom to protect the business secrets of business, there is no commercial secret industry is no competition, if those The company is not prepared to operate or completely give up the business if it is also included in the "company's business", it is unreasonable to limit the workers freedom of choice. On the other hand, the business secrets generated by the company in business other than the business license should also be protected by law. Therefore, the author thinks that it is reasonable to determine the scope of the business which the company is actually engaged in.
2. Time limits for non-competition, which are mainly directed at the prohibition of non-competition, which depends largely on the duration of the trade secret in the market competition, the extent to which the worker has the trade secret, The level of technical level and the level of protection of a country on the level of trade secrets, the international practice is 3-5 years. Such as the German Commercial Code provides a maximum period of not more than 2 years, the Italian Civil Code provides senior staff no more than 5 years, the general staff of not more than 3 years. For some of the rapid development of high-tech industries, the prohibition period significantly reduced, such as the US New York State Court in the earth web v.schlack case on the verdict wrote: the internet environment it industry, the year productivity Has been updated for several generations, taking into account the rapid development of the industry characteristics, 12 months of non-competition forbidden period is too long, and in the millard maintenence service co.v.bernero case, the judge that 5 years of non- The term is reasonable because "the nature of the industry itself and the time required for the manufacture and market development of the machinery is the time it takes for the former employer to take years to establish a relationship with the manufacturer." Even in some cases, the lifetime competition agreement is also Therefore, the author believes that it is reasonable to set the upper limit of the general limit of competition in the non-competition period to 3 years, but for the rapid updating of information in the hi-tech field, because the trade secret itself is generated The period of efficiency is shorter than that of the general industry, so the period of non-competition restriction should be shorter, generally one year is appropriate.
3. Geographical restrictions that are prohibited by non-competition: It is generally accepted that the employing unit can only make a restricted area which may compete with it in a substantial competition, that is, to bring a realistic and substantial obstacle to the competition of the enterprise Or the area of harm, in practice, if the employer to expand the restricted area to the employer may carry out business in the future or business, but the business brand or product sales in the region occupy a slight geographical location, is the staff An obstacle to freedom of employment, such a prohibition of agreement law should be determined that it is invalid. Because the region does not protect the interests of employers is necessary. Of course, if the employer is national or worldwide, or if its users are national or global, there is no need to consider geographical restrictions.
Compensation for non-competition. The reasonable compensation for the laborers is the basic condition for the employer and the laborer to sign the non-competition agreement. This will take into account the business to protect business secrets, but also