Trade Secret Protection In The Flow Of Talent - The The Noncompete System

The transferring of talented people includes two patterns: employee's part-time job in incumbency period and demission. Trade secrets are incorporeal property, which keep non-visible by means of maintaining secrecy. The transferring of talented people is the main channel for the giving away of the business secrets. Because of the trade secrets' personification, it is difficult to distinguish the trade secrets from the employee's common knowledge, experience and technical ability in judicial practice. As a means of protection of the business secrets in the transferring of talented people, competing for job prohibition means employers forbid their special staffs to compete with their own enterprises in the employees' incumbency period and their demission period respectively. And it regulates the legal relation between the enterprises and agencies and their internal special employees.Our existing system of trade restraint is imperfect. In order to protect the commercial secrets in the transferring of talented people, it is necessary to build and perfect our existing system of trade restraint, such as to make a national law as soon as possible, expressly provide the important articles in the legislation as to strengthen feasibility, expand its range of protection and application objects, provide elastic articles and endow judge with the power of free judgment, and so on. Meanwhile, it isnecessary to enhance the covenants protection, that is to permit employers and employees sign the covenants not to compete. But the covenants not to compete must accord with the criteria of legalization and rationalization, for example whether exists the interest should be protected, whether the interest should be protected is more significant than the profit sacrificed, whether accords with public interest, whether the employees, region, field, deadline and compensation are rational. It will influence the validity of the covenants not to compete, for instance the trade secrets enter the open field, the reason of employees' demission, employer is bankrupt and transfers to civilian work, and so on. When the covenants not to compete have some articles rational and some irrational, it is more reasonable to use the blue pencil rule. And for the issue of covenants not to compete, it must adopt special issue management system; such as introduce the inevitable disclosure doctrine to protect the trade secrets from the threatened misappropriation.