Study On Legal Issues Of Non-Competition Restriction In Labor Law

With the development of economy, talent liquidity is growing. The free flow of enterprise’s business secrets correspondingly generates. Business secret is a powerful weapon and profit source in the free competition of the market economy, so it is very important for it to get legal protection. The flow of labor resources is bounded to limit. Therefore, the non-competition system emerged in order to limit the free flow of labor resources, protect the employer’s business secrets, and promote the healthy and orderly development of market economy.The non-competition restriction system is reflected in China’s "labor law", "labor contract law", and other relevant laws and regulations. However, China’s non-competition system is not complete in legislation and practice and the theoretical circle has relatively little study on it. In contrast, the foreign non-competition restriction system research is relatively mature, but countries with Anglo-American law system and those with continental law system have distinctive non-competition restriction systems due to their national conditions. Much experience in these distinctive systems can be used for reference.This paper is divided into four parts. First of all, the author analyzes and summarizes the theoretical basis of competitive restriction system and abstracts the universal principles used for legislation of non-competition system. Secondly, the author takes the foreign experiences of non-competition legislation as examples, and sums up the basic experience and lessons of foreign non-competition system. In the third part, the author analyzes China’s legislation and practice of competitive restriction legislation, especially deeply analyzing regulations concerning the non-competition restriction system in the newly-issued "The supreme people’s court’s explanations on some issues about the Article of Fourth Interpretation of the Supreme People’s Court on Some Issues Concerning the Application of Law in the Trial of Cases on Labor dispute, combined with domestic scholars’ point of views, the author extracted the progress of the“Explanations” compared with the original legislation and its existing shortcomings.At the end of the paper, as well as the core of the paper, the author proposes suggestions from four aspects in terms of the deficiencies of China’s non-competition system. First of all, to uniform legislation and improve the non-competition system by perfecting the "labor contract law"; secondly, to perfect the rationality of the competitive restriction agreement, including five aspects of elements. Thirdly, to perfect the confirmation rules for the efficacy of the competitive restriction agreement, the invalid situations including non-competition agreement and a part of invalid situation of non-competition agreement are analyzed in details. In conclusion, this paper strives to perfect the non-competition restriction legislation in our country by the integration of existing laws, and contributes a little to the non-competition restriction system.