| Summary: | 碩士 === 銘傳大學 === 法律學系碩士班 === 97 === With regard to the Post-employment covenants not to compete, there are extreme discrepancies between theory and practice of Court in our country. This phenomenon, especially diversities in practice of Courts, makes the stability of Law hard to ensure, and inevitably causes both the employers and employees indecisive. This should not happen in a country ruled by Law, and has to be reviewed and reformed. The fundamental way is to stipulate related Laws and Regulations as soon as possible, to provide an explicit rule for both parties. Therefore, this thesis tries to bring up an appropriate pattern for judicial review and legislation suggestion for reference of the Court, Council of Labor Affairs of Executive Yuan and Legislative Yuan before the Post-employment covenants not to compete being legislated.
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This thesis consists of six Chapters, based on literature and Judgement collection and compare-analyze as the research method. Hereby stated as follows:
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Chapter I: Preface, to indicate the motive, purpose and research scope of this thesis.
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Chapter II is to introduce the fundamental concept of the “Post-employment covenants not to compete”.
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Chapter III presents the relations between the “Post-employment covenants not to compete” and “freedom of contract”. The contracting parties may arrange the rights and obligations under mutual consent based on freedom of contract, however, the labor may suffer for unfavorable terms and conditions caused by inequality of economic powers between the employers and employees. Besides, the Post-employment covenants not to compete often shows itself in the way of “model contract”, which leaves the employees no choice. Therefore, this thesis first narrates the relations among the freedom of contract, labor contract as well as model contract to indicate the unfavorable status of laborers in the “Post-employment covenants not to compete”.
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Chapter IV is about the relations of “Post-employment covenants not to compete” and “basic rights of Constitutional Law of the employers and employees”. The “Post-employment covenants not to compete” has influences on the basic rights of both the employers and employees. Freedom of contract is one of the basic rights of Constitutional Law; ostensibly both parties conclude the contract under freedom of contract. Nevertheless, whether the employees do have the freedom of contract is equivocal since the employer is economically superior. Meanwhile, the freedom of contract of the labor is infringed possible. On the other hand, the contract protects the employer’s freedom of business, but infringe the freedom of choice of occupation of the employee, how does the country intervene the conflict of basic rights between the employers and the employees, and to settle the disputes caused by the “Post-employment covenants not to compete” further become the key point of this chapter.
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Chapter V refers to the judicial review of the “Post-employment covenants not to compete”. As the former chapter indicates, a country should intervene the private relations between the employers and employees under protection obligations of the basic rights based on Constitutional Law. What do other countries work to intervene the “Post-employment covenants not to compete”? This chapter thus starts out a viewpoint of comparative Law, to introduce the regulations and standard of judicial review and legal effects about the “Post-employment covenants not to compete” of several countries, then analyze and compare with the theory and practice of this country. Further, to submit a more proper pattern for judicial review and legal effect this thesis suggests.
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Chapter VI is the conclusion. Except to conclude the above mentioned, this thesis tries to bring up a viewpoint for reference of the Council of Labor Affairs of Executive Yuan and Legislative Yuan.
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