Theoretical Reflection Of The China’s Leaving Non-compete Legal System

With the development of the socialist market economy,human resource flowfrequently,thus it lead to China’s strengthening of protecting intellectual propertyrights. Especially commercial secret、commercial credit、business opportunities andother intangible assets, the intangible assets can be considered as the value of theright,the property rights are latent complexity、high risk and more vulnerable tolaborer’s violation, therefore leaving non-compete legal system reflects its value.Notonly this, along with the protection of human rights and the rise of social law, theproperty right of employers and the right of employment are conflicted each other,through the leaving non-compete legal system, which can realize the behavior of therights and obligations of the equivalence, also can effectively balance the value offreedom and order、efficiency and fairness.In the course of the study, I mainly utilize the comparison research method、empirical research method and economics research method.First of all，I introduce theleaving non-compete legal system’s fundamental principles，analysis of it’s legalconnotation characteristics and function value，point out that the leaving non-competelegal system can effectively achieve the rights and obligations of equivalence；Next，after I reflected the leaving non-compete legal system’s basic structure、concept andlegislative principles，point out the leaving non-compete legal system evolved fromcommercial secret laws、the company law to labor law, from after the eventprotection、matter protection to preincident protection,from absolutely forbidden torelatively banned, from protection of property rights and liberties to protecting of thelabor rights and property rights, from the private law to the social law.With theinfluence of human rights and the change of the law concept，china’s leavingnon-compete legal system evolved from limiting competition、 protecting theenterprise property rights、 maintaining competition order、 encouraginginvention-creation to reasonable limit competition、equally protecting the propertyright of employers and the right of employment、maintaining public interest andpromoting social fairness and justice.The legislation also from duty of loyaltyprinciple、principal-agent principle、lutheran obligations principle to reasonable limitcompetition principle、equal rights and obligations of the principle、Cost and benefit principle、restricted rights negative effect principle、balance of interests and publicinterests principle.Through the basic law、other related laws、regulations and theagreement of both parties，china’s leaving non-compete legal system is adjusted andregulated；Oncemore，after reading about many relevant law books and leavingprohibition of judicial cases of disputes，to my opinion，the effectiveness of theleaving non-compete system operation and implementation of the important factorsare the cost of the right. leaving non-compete system is not able to achieve systemitself expected effect and purpose. the protection of the right to private high cost andthe public cost less input are the restricting factors of the leaving non-compete system.At present,our country’s evidence rules、property preservation rules and the thirdinfringement rules lead to the increased cost of employers’ protection rights. Servicesystem、 no fixed term system、without prejudice to the legal provisions andcompensation also increased the cost of workers and abide by the law. Together withthe supervisory cost and insufficient investment in execution cost, leavingnon-compete system is not able to achieve system itself expected effect and purpose；Finally, through the reflection of china’s leaving non-compete legal system’s Judicialoperation difficulties,I put forward some suggestions.Such as reasonable forrestraining order, from the perspective of the cost of right to perfect the leavingprohibition action mechanism,the legal control and social control mutual move, clearprohibition on leaving without prejudice is an important way of controling the cost ofright, establish and perfect the standard competition restriction agreement and thelegal supervision and the execution behavior mechanism.Through analysis china’s leaving non-compete legal system of the basicstructure、the concept、the legislative principles and the Judicial operation difficulties,I think that in the knowledge economy under the background of innovation, ourlegislature that make corresponding laws of protecting intellectual property rightsshould be considered the factors of the right cost. only in this way, Can we promotethe realization of the right and our legal system.