我国商法竞业禁止规则的理论重构

Theoretical Reconstruction of Prohibition Rules of Competition in China's Commercial Law

近年来,各种形式的营业转让在我国已呈现出蓬勃发展之势;然而相应的竞业禁止规则在实定法层面的缺失使其难以充分发挥应有的资源优化配置功能。尽管我国《商事通则(建议稿)》对竞业禁止规则作出初步建构,但仍失之粗疏、简略。立基于商事通则现有条款,从比较法视角考察域外营业转让之竞业禁止规则的先进立法例,并在分析该规则应然法理的基础上,对其进行理论重构,有助于竞业禁止规则在实践中平衡营业转让各方利益、增进社会整体福利的价值目标。

In recent years, various forms of business transfers have shown a trend of vigorous development in China.However,a lack of the relevant prohibition rules of competition at the legal level makes it difficult to give full play to the proper allocation of resources.Although China＇ s＂General Commercial Rules（Proposal）＂ make provisions for the prohibition rules of competition,these provisions are still rough and brief.Learning from advanced legislation of extraterritorial non-competition rules of foreign commercial law, analyzing the principles of prohibition rules of competition and reconstructing the theory of prohibition of competition rules based on the existing terms of the General Commercial Rules are helpful for the prohibition rules of competition to balance the interests of all parties of business transfer and improve the overall welfare value of society in practice.