【作者】 徐阳；

【导师】 冯彦君；

【作者基本信息】 吉林大学 ， 民商法学， 2010， 博士

【摘要】 竞业禁止制度产生发展已有一定的历史,学界形成了一些理论研究成果,各国法律实践也总结出了一些有益的经验,但至今在竞业禁止的许多关键问题上仍存在较大争议。我国竞业禁止制度建立较晚,相关理论研究尚不深入,立法实践仍不成熟,在制度运行中暴露出一些缺陷与不足。本文以劳动者权益保障为视角,全面系统地分析竞业禁止基本理论,并充分借鉴国外先进的理论研究成果和立法经验,对我国竞业禁止制度的优化和劳动权保障的强化提出若干建议,以期在实践中更好地协调劳动权和商业秘密权的冲突,进一步维护和增进社会公共利益,促进人力资源有序流动和市场经济健康快速发展。在充分论证的基础上,文章主要提出了以下学术观点:一是竞业禁止制度产生的内在原因是劳动权、商业秘密权与社会公共利益的冲突和碰撞,协调化解三方权益冲突、形成利益平衡机制是竞业禁止制度的根本职能;二是竞业禁止制度正当性的理论基础是诚实信用原则和忠实义务,诚信原则是竞业禁止的基础性原则,忠实义务为在职竞业禁止提供了理论依据;三是为优先保障和实现劳动权,竞业禁止中劳动权保障的根本原则应为倾斜保护与平衡协调原则,具体原则为生存权优位原则、利益平衡原则和合理限制原则;四是竞业禁止协议符合劳动契约自由的理念,协议应采取书面形式,且需具备合理的禁止竞业的目的、期限、区域、业务和经济补偿要件;五是我国应对竞业禁止制度采取谨慎承认并严格规制的态度,在竞业禁止基准法、集体合同和个体协议三个层面对竞业禁止进行规制。更多还原

【Abstract】 The market competition in the era of knowledge economy, in a way, is the competition for the human resource. The enterprise, which owns high standard human resource, can develop superiorly and gain the advantage of competition in the market. To deal with the fierce competition, all the companies will attract high standard labors by all means. As a result, the tort cannot be banned totally because of the job-hopping, part-time job and jobbery. At the same time, the scene in which companies limit their labors illegally can always be seen. How to coordinate the right of the enterprise and also the labors becomes more and more important. This has become a problem which should be solved as quickly as possible in economic life and laws theory.But as the way to protect trade secret, the principle of Prohibition of Business Strife has been argued for a long time. How to define the Prohibition of Business Strife? How to understand the cause, basic theory, function and principle of the Prohibition of Business Strife? How to coordinate the conflict on protecting Prohibition of Business Strife? Learners have different attitude towards these questions. These controversy and suspicion have bad effect on the development of Prohibition of Business Strife. Based on the protection of labor rights, the author researches the Prohibition of Business Strife and thinks about the condition and future of it.This paper is divided into five chapters:Chapter 1: Analyze the basic theory of Prohibition of Business Strife. To study it, we should know how Prohibition of Business Strife develops, clear the mass of the understanding of it and realize the connotation of it. Prohibition of Business Strife has developed in different periods in which it has different function and goal. In the stage of wage labor, the task of Prohibition of Business Strife is to make the human resource move fluently and to make the economic order fair in market. Learners study little about the cause of Prohibition of Business Strife which are the hypotaxis of labor relationship, the anthropomorphize of trade secret and the character of“lose forever”of trade secret. The Prohibition of Business Strife is to coordinate these three aspects. Finally, I will analyze the jurisprudence of Prohibition of Business Strife. Employees’being loyal to their employers is included in the contract which is based on the existence of labor relationship. When the contract is relieved, only the principle of honest can be the basic theory of Prohibition of Business Strife.Chapter 2: Analyze the labor right of Prohibition of Business Strife which is the basic view of this paper. Labor right, which has the character of living right and developing right, is a basic aspect of human right. The offering and exercising of labor right is the promise for the existence and development of labors. This paper analyzes the connotation, character of labor right, especially the part about Prohibition of Business Strife which considers working right and employment right are the core of labor right. The basic of labor is the qualification of work. The standard to judge a labor is the employment. So the board members, managers and common employees should all be included in the Prohibition of Business Strife. To define the subject of labor without employment, we should consider the acknowledgement as the main part and the position, income, the time limit as the assist part. Only in this way can we protect the right of labors.Chapter 3: Discourse the rights and benefits conflict and the principle of labor right protection in Prohibition of Business Strife. The essence of labor right is existence right with status libertatis and social right. It’s very important to protect and achieve labor right. The basic principle of labor right is favoring protection and balance coordination. When there is conflict between labor right and capital right(such as property right), we should use the principle of existence right first, the principle of benefit balance and the principle of reasonable limit to coordinate it on the basic of favoring labor right protection in order to achieve the protection of labor right. The protocol of Prohibition of Business Strife is produced by the labor relations. Labor relation is the basic of Prohibition of Business Strife. The protocol is a kind of labor contract. In exactly, Prohibition of Business Strife is a subordinative labor contract with labor relations. The essence of it is a trade between employees and employers. The protocol of Prohibition of Business Strife must satisfy the formal essentials and substantive essentials. In addition, the assertion of effectiveness of Prohibition of Business Strife in the condition of unreasonable clause, employment separation must be differently treated.Chapter 4: Expound the legal liability for violating the Prohibition of Business Strife. The civil liability can be divided into liability for tort and liability of breach the contract. As the important exante way to protect the trade secret, we shouldn’t take the“fact that the obligee’s right is encroached”as the constitutive requirements of the civil liability of Prohibition of Business Strife. At the same time, the paper discoursed how to distinguish the employer’s liability, employee’s liability and third party liability which violate the Prohibition of Business Strife. Because the liability of Prohibition of Business Strife also belongs to the liability for tort of violating trade secret, the actor of competition trade may assume the criminal liability for the serious gravity of the circumstances. The paper also involves the criminal liability.Chapter 5: Explore how to optimize the Prohibition of Business Strife and legal system of the laws of labor right protection in our country. China hasn’t regulated the Prohibition of Business Strife perfectly. It’s inevitable and our need to optimize Prohibition of Business Strife in such a fast developing social economic country and such a huge labor market. Utilizing advanced experience on legislation and research of theory in foreign countries, we should be strict to Prohibition of Business Strife and balance the benefit of labors, companies and public. Meanwhile, we should integrate the basic condition of our country to clear provincial legislation and found scientific and perfect system of Prohibition of Business Strife. The key is the protection of labor right. We should choose the adjustment formula of Prohibition of Business Strife scientifically which is regulated in different levels. As for the connotation construction, we should design and optimize the verification, preventing the competition of business subject, solution of dispute and system of accountability.更多还原