| Summary: | 碩士 === 東吳大學 === 法律學系 === 105 === For the reason that commercial information flows quickly in modern society, people transfer to new companies more frequently than before. If a company fails to be dedicated in protecting commercial interests, it may suffer from damage due to the disclosure of secrets by employees. In view of the fact that the infringement of trade secrets by the employees transferring to new companies is more and more common day-by-day in recent years, the laws relating to trade secrets are enacted to allow the companies that suffer from infringement to forbid the infringing party from taking certain actions, to make the infringing party be punished by criminal penalties, and to claim civil damages against the infringing party. However, if a company, especially a high-technology company, loses its competitive advantage due to the disclosure of trade secrets, the damage to the company may be too serious to be recovered, which makes great impact on the company.
Comparing to the protection of the laws of trade secrets, which aim at ex-post remedies, the agreements on the restrictions on competitive activities after the termination of employment are the ex-ante actions, which clearly specify the subjects, scope and term of the restrictions on competitive activities. By signing agreements containing both confidential provisions and restrictions on competitive activities after the termination of employment between company and its employees, the commercial interests of a company can be protected more soundly; however, in practice, some companies ask employees to sign apparently unreasonable agreements on the restrictions on competitive activities after the termination of employment, as the companies are in an advantageous position, and even refuse to provide reasonable compensation for the term during which the restrictions on competitive activities are imposed. As a result, disputes between employers and employees occur constantly. The way to appropriately mediate between the commercial interests of companies and the right of employees to choose job freely is an important issue in the agreements on the restrictions on competitive activities after the termination of employment.
Commercial interaction and the flow of talents between China and Taiwan are quite frequent, and thus the laws in China governing the restrictions on competitive activities after the termination of employment and the opinions of courts in practice are closely related to the rights and interests of Taiwanese businessmen and the labors who work in China. This thesis focuses on the laws and judicial practices in China governing the restrictions on competitive activities after the termination of employment, and also introduces the recently amended Labor Standards Act and practices in Taiwan as comparison and reference for the expected amendment to the restrictions on competitive activities after the termination of employment in China.
Key words: Restrictions on competitive activities; Right to choose job freely; Commercial interests; Trade secrets
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