A Study on the Reasonable Measures about Limitation Of the Working Right－The Study on Manner of Contracting and Application about Post-Employment Covenants Not to Compete

• Main Authors: WU, CHIH-YI, 吳致頤
• Other Authors: KUO, LING-HWEI
• Format: Others
• Language: zh-TW
• Published: 2016
• Online Access: http://ndltd.ncl.edu.tw/handle/dezj6g

碩士 === 東吳大學 === 法律學系 === 104 === After Justice in Supreme Court in Taiwan made the final and binding Judgment about the Taiwan Semiconductor Manufacturing Co., Ltd. v. Liang Meng Song in January 2015, the discussion about the protection of trade secret and Covenants Not To Compete (CNTC) becomes popular again. For the High-technology Industry in Taiwan, the CNTC is an important way preventing the trade secret from leaking out so that High-technology Industry can maintain their own competitive advantages. For the employees, however, the CNTC prevent workers working at the same or similar industries in a certain extent of period, region and occupation so workers' Fundamental Right of Working, Existence and Personality is seriously limited and deprived. Thus, we need to consider these costs caused by CNTC to employees and protect their rights and interests so that the balance of CNTC between employers and employees can be pursued. In 1997, the judgment 85,勞訴,78 was made by civil court’s justices in Taiwan Taipei District Court, the validity-review criteria of CNTC commence discussing with a system, standard and meticulous manner. On November 27, 2015, The Legislative Yuan passed the Amendment of Labor Standards Act, the validityureview criteria of CNTC was enacted in Article 9-1. Although the development of validity review criteria of CNTC have been enacted, the Amendment of Labor Standards Act, Article 9-1, with a circumstance that the degree of enacted regulation Article 9-1 is insufficient, and the contents of the regulation are under the circumstances of defectiveness. These incompleteness may cause doubts about validity-review criteria in judicial review. In addition, the Article 9-1 did not regulate the manner of contracting, for example, it is questionable whether the manner is suitable about contracting in advance by employers’ self like Work Rules or Standard contract. Moreover, the change of contents of CNTC that concern the relationship of review criteria each other, which is not discussed and regulated in the Article 9-1. This thesis will focus on the issues that the development of judicial practice, the development and influence of the Article 9-1, and the suitability about the manner of contracting and adjusting, and the relationship of review criteria each other and the judgment of rationality.