Study on Post-employment Restraint System of China
|School||Southwestern University of Finance and Economics|
|Keywords||post-employment restraint post-employment restraint system post-employment restraint agreement trade secret reasonableness operating mechanism|
Prohibition of business strife is an important legal system in nations to coordinate and balance the interests between the business parties, and to obstruct the unruly competition. Based on incurring time, it can be defined as ex-employment restraint and post--employment restraint. However, in the research, post--employment restraint (PER) is the only researching target, which is an important measure to protect trade secret, other information of trade and capital of manpower. It is becoming more and more important in times now.Because of the restriction the post--employment restraint system (PERS) impose on the employee’s rights to work and to live, whether the PERS is applicable in China is argued for quite some time. With the development of market economy and mobility of trained personnel, the competition between enterprises is becoming more and more intense. Nowadays in China, there are more and more managers、technicians and personnel in a specific field—“white-collar workers”jump the manger. In July 2005, the case of Microsoft V. Kaifu Li causes a mighty uproar and a heated discussion over the PERS.This paper is beginning with the legitimate foundation study of the PERS and drawing a conclusion that the PERS is applicable in China. By studying the present situation of the PERS of China, we can see the defects of the PERS of China and the PERS of China is in a difficult position. At last, this paper put on an emphasis on the establishment of the PERS of China.There are four chapters as follows:Chapter one discusses the legitimate foundation of the PERS, including the theoretical foundation and the practical foundation.First, this paper talks about the basic concepts of the PERS. The essential distinction between ex-employment restraint and post--employment restraint is the basis of duty. The post--employment restraint is an important measure to protect trade secret. But there are six different concepts between post--employment restraint and trade secret protection: legitimate foundation, the limits of protection, the subject of burden, the content of burden, the deadline of burden and the compensation.Second, this paper talks about the theoretical foundation of the PERS. By analyzing cost-benefit, the PERS is applicable in economics. The spirit of selfish is the PERS’social foundation. The reasonable restrictions on competition for markets and freedom relativity are the PERS’legal theory. So the PERS is applicable in theory.Third, by analyzing the comparative law of the PERS, we can see that whether the PERS is applicable depends on the social and economic conditions. It is necessary to approve the PERS in the reasonable range.Chapter two concerns the present situation of the PERS in China, and gives a clear picture that the PERS of China is in a difficult position.First, on the base of the above discussion, this paper has a foothold in national conditions of China and draws a conclusion that the PERS is applicable in China.Second, by analyzing the present situation of legislation and the present situation of operating mechanism of the PERS of China, this paper finds out there are many defects in both legislation and operating mechanism of the PERS of China. The criterions to judge the reasonableness of a post-employment restraint agreement are not specific; there is lack of the supervising-mechanism for honoring the agreement; the judicial relief measures are lack of applications; there is social phenomenon that many employers abuse their rights of the PERS.Chapter three discusses the perfection of legislation the PERS in China. The author lists six criterions to judge the reasonableness of a post-employment restraint agreement. By studying the foreign legislation and judicature, this paper makes a detailed discussion about the reasonable conditions of a post-employment restraint agreement and puts forward many proposals for the perfection of Chinese legislation according to the defects.First, the purpose of the post-employment restraint agreement (PERA) must be limited to the protection of the employer’s trade secrets. Second, the debtor must be the one that has known or has the opportunities to know the employer’s trade secrets and the PERA must not deprive the employee of viability. Third, the prohibited scope of business may use the experience of other countries for reference, restricting on technology, product, service and behavior, specific not ambiguous. Forth, the prohibited region must not go beyond the scope where the employer’s business exists. Fifth, the prohibited period must accord with the characteristic of the trade secret. Sixth, the reasonable compensation must be contained in the agreement. Criterion and means of payment must be specific.Chapter four discusses how to keep the PERS functioning properly. The paper puts on an emphasis on the establishment of the operating mechanism of the PERS of China and puts forward many proposals for the perfection of Chinese operating mechanism according to the defects.First, administrative enforcement of law and judicial supervision can be mutually complementary.Second, the paper suggests using the“injunction”in the common law system as reference, improving the remedy for trade secrets owner especially before trial.Third, establishing the credit files system in order to improve the awareness of employee and employer.In the meantime, the paper suggests amplifying the collective bargain mechanism of labor union organization in order to guarantee that the consultation is on the basis of equality and amplifying the social security system in order to guarantee that the post-employment restraint system is truly implement.The author collected rich foreign resources, including legislative data and leading cases of England、America、Japan、Austria、Germany、France、Switzerland , Mexico and so on.This paper tries to make creation on the research angle. The research before has neglected the research on the operating mechanism of the PERS of China. This paper will put on an emphasis on the establishment of the operating mechanism of the PERS of China.