| Summary: | 碩士 === 國立臺灣海洋大學 === 海洋法律研究所 === 107 === Abstract
With the vigorous development of the industry and the fierce competition in the commercial market, the business community in the way of high salaries to obtain the business secrets of competitors, hoping to gain a first chance in this field or defeat the opponent, it is not uncommon, so business owners to avoid employees (especially senior executives) after leaving the business secrets, Even the industry's research and development technology results to the opponent to sit on the profits, most companies will choose to sign with the departing employees of the competition prohibition clause or confidentiality, employees in order to win job opportunities, often signed the relevant provisions, and then leave, derived from the claim for damages and other related civil and criminal proceedings.
Employees are the basis of the company's growth, especially professional and strong staff is the company's important capital, but after the company's hundreds of cultivation of relying on talent, in case of the embrace of competitors and "a long-term talent" is the biggest nightmare for all the company. How to manage such risks is extremely important to the company. Relatively speaking, for employees, if they leave office and are still constrained to make good use of their expertise, it is a loss for the society as a whole and affects the employee's right to work and even the right to exist.
The concept of constitutional protection of the right to work is that the people should have the freedom to choose their profession, but the prohibition clause of competition restricts the people's freedom to change careers, and in the conflict between private law autonomy, freedom of contract and constitutional protection of people's rights and interests, such a clause has been challenged, whether it is effective or not, and has caused great controversy both at home and abroad. Therefore, how to balance the protection of the interests of the company with the right of employees to work and the freedom to transfer, in order to maintain china's industrial competitiveness and promote the development of technology is an important issue.
The judgment in the case of TSMC and Liang Mengsong is the first time that a court in China has ruled that "the competition ban still restricts the work of departing employees for competitive enterprises after the expiration of the competition ban", and the dispute of the competition ban is a conflict between the two constitutional guaranteerights of the right of employers' property and workers' right to work. Standing in the position of the employer, to agree with the employees to limit the scope of the competition ban is the wider the better, so as not to hang up a leak, but the actual occurrence of employees in violation of the agreement, the competition prohibited clause can be found to be valid in the court, in addition to the competition prohibited contract clause pre-precision formulation, for china's court practice of the grasp is also important.
Therefore, in addition to evaluating the TSMC and Liang Mengsong case, this paper will explore the business secrets and competition prohibition clauses and practical restrictions on the competition restrictions and scope, in order to business owners and employees in the formulation and signing, can avoid the controversial agreed clauses, in order to achieve a win-win purpose.
Keywords: Non-competition, Trust Policy, Freedom of Contract, Right to work.
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