劳动者离职竞业禁止协议的法律效力分析——以经济补偿金的给付为视角

An Analysis of the Legal Effect of the Laborers' Dimission and Non-competition Agreement——From the Perspective of the Economic Compensation Payments

我国《劳动合同法》没有规定离职竞业禁止协议的效力标准,导致理论和实践中对经济补偿金与离职竞业禁止协议的效力关系存在争议,形成两种相反的观点:经济补偿金的支付是或者不是离职竞业禁止协议的生效要件。审视经济补偿金与离职竞业禁止协议的效力关系,应从合法性和合理性两个角度加以区分并在今后立法中予以完善:明确经济补偿金支付的必要性;规定经济补偿金支付的计算标准;赋予劳动者申请变更或者撤销离职竞业禁止协议的权利。

The tween the economic Labor Contract Law of China doesn＇t specifically set the standard of the potency relations be- compensation and the non--competition agreement, which leads to controversy when it ap- peals to practice. Basically, there are two opposite opinions. One is that the payment of the economic compensa- tion is the effective elements of the leaving post and non--competition agreement, while the other is totally op- posite. To have a deep insight into the potency relations between them, we have to distinguish both of them from the perspective of validity and rationality. And the legislation should be improved from the following as- pects： to ensure and explicit the necessity of the economic compensation; to set the calculating standard of the e- conomic compensation clearly; and to endow the laborers with the right of claiming cancellation.