劳动者在职竞业限制默示义务的理论证成与司法适用

The Theoretical Substantiation and Judicial Application of Employees’Implied Duty of Restrictions of On-the-job Competition

我国劳动法未明确规定劳动者在职期间的竞业限制义务,导致在理论与实践中对在职竞业限制义务的属性产生了认知上的分歧,主要存在法定义务说、默示义务说和约定义务说三种观点。通过对劳动者忠实义务理论的梳理,发现劳动者履行在职竞业限制义务系诚实信用之要求,具有默示义务之属性。承认在职竞业限制义务的默示属性亦有利于纠正劳动者与用人单位之间利益的不均衡,因此存在正当性基础。在司法实践中宜将在职竞业限制视作默示义务,以合法预期原则为其适用前提,并区分不同劳动者承担在职竞业限制义务的具体程度,以实现劳资双方的利益平衡。

The labor law of our country does not clearly stipulate the duty of restriction of competition during the working period,which leads to the cognitive difference of the attribute of duty of restriction of competition in the theory and practice.There are three main viewpoints:legal obligation,implied obligation and contractual obligation.Through combing the theory of the duty of loyalty,it is found that the fulfillment of the duty of on-the-job competition restriction is the requirement of honesty and credit,and has the attribute of implied duty.The implicit nature of the duty of on-the-job competition restriction is also helpful to correct the imbalance of interests between workers and employers,and accordingly,there is a basis of legitimacy.In judicial practice,on-the-job competition restriction should be regarded as an implied obligation,and its application premise should be based on the principle of legal expectation,and the specific degree of different workers to undertake the obligation of on-the-job competition restriction should be distinguished,so as to achieve the balance of interests between workers and employers.