竞业限制之正当性辨析——以经营权与劳动权冲突及化解为视角

An Analysis of the Legitimacy of the Restraint of Trade——From the Perspective of the Conflict and Resolution Between Management Rights and Labor Rights

竞业限制调整的通常是以代理为特征的法律关系。劳动权保障、经营权维护及市场竞争秩序是其规制的主要内容,而规范有效的市场竞争秩序又是劳动权保障、经营权维护得以实现的保证。其中,劳动权保障是资本扩张的前提和基础,而资本扩张既是经营权维护的内在诉求又是劳动权保障的物质条件。劳动权保障与资本扩张的一致性,决定了作为劳工政策之光谱两端即劳动优先与资本扩张的一致性。二者正是借助于法律规范之建构,在利益博弈的过程中实现了资本扩张与劳动优先的内在统一,以此成为竞业限制之正当性的共同基础。该结论对深入研究及探寻劳动权与经营权之权利冲突及化解路径问题具一定意义。

What the restraint of trade usually regulates is the legal relationship characterized by agency, of which the labor rights protection, management rights protection and the order of market competition are the main content. Meanwhile, normative and effective market competition order is the guarantee to realize labor rights, management rights . Among them, the protection of labor rights is the premise and foundation of capital expansion, and capital expansion is the intrinsic demand of management rights protection and material conditions of labor rights protection. The consistency of the labor rights protection and capital expansion decides the consistency of the two sides of labor policy—— just like the two ends of spectrum, namely the consistency of labor priority and capital expansion. With the help of legal regulation construction, the capital expansion and labor priority achieved internal unity during the process of interest game, which has become the common foundation of the legitimacy of restraint of trade. This is of great significance to explore the conflict between the labor rights and management rights as well its solution.