The Exploration Of Physicians Non-Compete Covenants In The USA

After long-term development, the non-compete covenant between employer andemployee has gradually developed into a system in the United States and a variety ofdetail provisions of criteria have been provided, and the non-compete agreementsare treated differently in different professions. Physicians non-compete agreement isspecially provided in the states of the United States because of the special nature ofthe medical profession. In the United States, the states generally prohibit the lawyernon-compete agreement, but the attitude to the physicians non-compete agreement isdifferent in different states. Some states consider that the agreement itself is invalid,and some states give special restrictions to physician’s non-compete agreement, whilethe vast majority of states adopt that the "reasonable standard" to judge the validityand enforceability of the non-compete agreement of physician.In China, because of the mobility system of physicians and hospital personnelsystem, the flow of physicians is greatly limited. And, there is not any physiciansnon-compete agreement cases, and few legislative provisions or academic research onphysicians non-compete. With the economic development and improvement of thecurrent flow system of physicians in China, there must be more flow of physicians,and therefore the physicians’ non-competition issues will come out.This article intends to start from the following three ways, find the underlyingreasons of the different practice on lawyer non-compete agreement and thephysicians’ non-compete agreement by exploring different practice and legislation onphysicians’ non-compete agreement in each states of United States, make analysis tothe various criteria on physicians’ non-compete agreement and put forward bettersolutions to balance the interest among the employer, employee and the patients accordingly, with a view to absorbing the relevant criteria to guide the development ofour physicians’ non-compete agreement.The first chapter is an introduction to the legislative and judicial practice of theAmerican physicians’ non-compete agreement. It is divided into two parts. The firstsection describes the legislative and judicial status of the physicians’ non-competeagreement in the states, the second part is to analyze the theoretical basis of thespecial legislation provisions on the physicians’ non-compete agreement. This chapterdescribes legislative and judicial status quo of the physicians’ non-compete agreementin the states by comparison of state legislations and judicial cases. Then discuss thelegal basis and reality basis of special treatment to physicians’ non-competeagreement from the specificity of the medical profession.The second chapter mainly discuss the "reasonable rule" of judging non-competeagreement in the United States and give a detailed description to the specificconsiderations of the "reasonable rule", and then introduce the concrete application ofthe "reasonable rule" in physicians’ non-compete agreement with related cases.The third Chapter first comments on the legislative and judicial status quo of thenon-compete agreement in China, and the application status of the legislature and thejudiciary in the medical profession, and then analyzes the legislation deficiency ofphysicians’ non-compete agreement and the related judicial practice on physicians’non-compete agreement in China, and finally discusses the reference and absorptionof American physicians’ non-compete agreement to the legislative and judicialpractice in China.In summary, this article analyzes the status quo and the development of thephysicians’ non-compete agreement and make rational analysis of the practices of theU.S. legislative and judicial practice, through analysis of the legislative and judicialattitude of the states on the physicians’ non-compete agreement, combined with the"reasonable rule" applied by most states, to learn from it and absorb relevant practiceand legislation suitable for the development of the medical profession, and to guidethe healthy development of the medical profession and well balance the interestsamong the employer, physician-employee and the patient.