论劳动法视域下的离职竞业限制制度

Discussing On Non-competition After Demission System In China Under The View Of Labour Law

离职竞业限制作为衡平用人单位和劳动者之间利益的一种机制,既要保护用人单位的商业秘密,又要保障劳动者的劳动权和自主择业权。由于我国《劳动合同法》的相关规定过于笼统,处于弱势地位的劳动者的劳动权和自由择业权屡屡受到非法侵害,理想的平衡状态经常被打破,偏离了立法者的初衷。因此,应当对离职竞业限制的主体、地域、期限、补偿标准、违约责任、合法商业利益范围等进行重构,使其在保护用人单位商业秘密的同时,切实维护劳动者的劳动权和自由择业权。

Non-competition after demission is regard as a kind of mechanism which balances the inter-ests between employers and employees, not only does it protect employer's business secret, but also it en-sures the labor rights and the right of choosing a career freely in the context of right of existence that the con-stitution endows. But because the relevant provisions in Labor Contract Law of China are too general, so thatthe labor rights and the right of choosing a career freely employees who are in a weak situation owns are in-fringed frequently, the ideal balance often is broken, which deviates from the original intention of the legisla-tors. We should reconstruct towards the subjects, the sign of contract or agreement, the fied, the term, thestandard of compensation, the liability for breach of contract, the scope of the legitimate commercial inter-ests of non-competition after demission, which makes it can maintain the labor rights and the right of choos-ing a career freely when it protects the employers' commercial secret.