Determination On Obligation Of Post-job Competing Prohibition

Prohibition refers to the stuff member who knows or masters the commercial secrets of a company, should not do part-time jobs in competitive companies or cannot run the competitive business at the same time during his term of office, and should not work in competitive companies or do competitive business activities after leaving for a specific period in the specific region. Prohibition is divided into legal prohibition and conventional prohibition. In this thesis, the basic issues of the dismission prohibition are used in four parts to make a comprehensive analysis and research.Part one is the putting forward of the problem. Through two typical cases, "Executive" restrictions case and the company's not committing to the industry prohibition case, we should reflected on the following issues. That is, the existence of the deficiency and conflict in our prohibition legal basis entities and the lack of the determination standards for the effectiveness of prohibition agreement in the "Labor Contract Law"Part two is to analyze the key principle to determine the prohibition obligations, i.e. the validity of the prohibition agreement. This part is discussed from two aspects. One is to analyze the validity basis of prohibition agreement, including agency cost theory, honesty and credit principle, the principles of fairness, reasonable competition limit principle and disgraceful consideration principle. Agency cost theory is the economic basis of prohibition agreement. Honesty and credit principle, the principles of fairness and disgraceful consideration principle is the legal basis of prohibition agreement, and reasonable competition limit principle is the important theory basis of prohibition agreement. The other is to analyze the effectiveness of prohibition agreement, including the goal, object, applicable term, applicable region and economic compensation, and analyze the reasonable standards of the various elements in detail. Only the validity of the prohibition agreement reasonable, legal and not against public interest can laborer is likely to undertake the prohibition obligations after the termination of the labor relations.Part three discusses the specific problems to determine the demission obligations of prohibition. In this part, the reasons of dismission are divided into several situations and then the obligation problems of prohibition of the labor are analyzed under each circumstance. The reasons of demission includes the resignation of the labor, the demission of the employing company, the expiration of the contract period and the changes of the operation condition of the employing company. Firstly, resignation can be divided into voluntary resignation and forced resignation. With voluntary resignation, the laborers must commit the obligations of prohibition, while with forced resignation; the laborers no longer commit the obligations of prohibition. Secondly, demission can be divided into punitive demission, economy dismission, and illegal demission and so on. The author thinks that regardless of what form of demission, laborers must assume obligations of prohibition. Thirdly, termination of contract is the most normal way to end labor relationship. After the contract expires, the laborer's prohibition obligations are not affected, so they need to continue to assume the obligations. Lastly, when the operation conditions of the employing company changes, including the combination or discrete, termination or demission and profession changing or transfer of the employing company, under such circumstances, the principle to obey is whether the employing company has the insurable benefits or needs. When the employing company combines or discrete, the rights and obligations are endures by the receiving company, and the laborers prohibition obligation is not affected. With the termination or demission and profession changing or transfer of the employing company, as there are no benefit subjects or no insurable benefit, the laborer has no need to assume the prohibition obligation.Part four is the judgment of prohibition obligations after the commitment of legal liability. Firstly, we discuss the laborer's violation of the prohibition obligation, and the emphasis is put on the civil liability of the laborer. The assuming form of the civil liability includes:cessation of fringerment, payment of liquidated damages, compensation for damages, responsibility determination and so on. Secondly, the relation between the commitment of prohibition obligation and liquidated damages is stated. The author thinks that the laborer no longer commits the prohibition obligation after the payment of liquidated damages, however, in order to protect the significant benefits of the employing company or there are clear agreement between the laborer and the employing company, the laborer should continue to bear the prohibition obligation.