中西商业秘密竞业限制合同若干法律规定比较

A Comparison on the Law of Commercial Secrets Competition Restriction Contract between China and Western Countries

商业秘密竞业限制合同是指单位或雇主为保护其商业秘密与员工约定的限制员工在任职期间或离职以后与本业务竞争的协议。此合同是保护权利人商业秘密的有效途径，但是又与员工自由择业权相冲突。追求两者的衡平，意大利、日本、美国等西方国家都通过立法或判例法对此合同的主要条款予以规制。竞业限制违约所致的损害，不同于一般合同违约的损害，其损害赔偿具有特殊性，西方国家对赔偿的范围和方法都有各自明确的规定。我国商业秘密竞业限制合同法律制度。

Competition restriction contract on commercial secrets refers to the agreement between the employers/companies and their employees that the employees can not compete with their employers/former-employers in order to keep the employers/companies' secrets.The contract can efficiently keep the employers'commercial secrets, while it is in conflict with the employees' freedom to choose new occupation. In western countries such as Italy, the United States, Japan etc,the main contents of this kind of contract have been regulated by law/case law to reach the balance between the restriction and the freedom of choosing occupation .The compensation for violation of this kind of contract ,whose range and whose passes have definitely stipulated in western countries ,is special for that the loss by this kind of violation is different from that by common contract violation.