营业转让中竞业禁止义务规范的实现

The Realization of the Obligation of Non-Competition in Business Transfer

摘要: 营业转让作为商行为法应纳入商事法律体系中，营业转让中的竞业禁止规则需协调转让人与受让人的利益冲突，将双方的权利义务限制在合理的范围内，应采取法定的竞业禁止方式，同时允许当事人通过协议排除法律规定以及法定的竞业禁止规则作为补充适用和兜底适用。制定竞业禁止规则的内容应包括竞业禁止的主体、地域、时间、范围，同时设置违反竞业禁止义务的法律责任，使得营业转让的整体经营价值得以实现。

Abstract: Business transfer is considered to be the law of commercial conduct that should be included in the commercial legal system. The obligation of non-competition in business transfer needs to coordi-nate the conflict of interest between the transferor and the transferee so that the rights and obliga-tions of both parties are limited to reasonable limits. We should take the method prescribed by law, and should allow parties to exclude legal provisions through agreements. On the other hand, statu-tory rules are used for supplementary application and minimum-guarantee application. The con-tent of formulating non-competition rules should include the subject, region, time, business scope, and legal liability. These will help realize the overall operating value of Business Transfer.