竞业限制协议泛化适用困境及法律规制

The Difficulty and Legal Regulation of the Generalization of Non-Competition Agreement

摘要: 竞业限制是平衡劳动者自由择业权与用人单位商业秘密保护的机制，其泛化适用不利于劳动者的权利保护以及科技创新，目前我国司法实践中对竞业限制协议的泛化适用问题严重，竞业限制功能在逐渐异化，主要由于主体不适当扩张、保护客体理解与适用偏差以及偏重形式审查等诸多问题。同时在司法实践中过分强调合同自由主义，依赖合法性协议效力审查，从而直接损害了劳动者的自主择业权，也不利于企业之间的良性竞争，基于此，应当在司法解释中进一步细化“负有保密义务劳动者”的范围，明确“商业秘密”应当按照《反不正当竞争法》中的三部分构成要件，同时结合劳动者获取技能的属性严格判定，效力审查应当基于合理性审查标准，明确协议的有效要件，最后要进一步遵从实质审查原则，合理分配举证责任。

Abstract: Competition restriction is a mechanism to balance the free choice of employment right of the laborer and the protection of the employer’s trade secret. At present, in the judicial practice of our country, there is a serious problem in the application of non-competition agreement, and the function of non-competition agreement is gradually dissimilating. It is mainly due to the improper expansion of the subject, the deviation of the understanding and application of the protection object, and the emphasis on the examination of form. At the same time, in judicial practice, the excessive emphasis on contract liberalism and the reliance on the examination of validity of legal agreements have directly damaged the right of workers to choose their own jobs, and are also detrimental to the healthy competition among enterprises. We should further refine the scope of “Workers with the duty of keeping secret” in the judicial interpretation, and make it clear that “Trade secrets” should be constituted in accordance with the three parts of the “Anti-unfair competition law”; at the same time, according to the attribute of skill acquisition, the validity examination should be based on the standard of rationality examination, and the effective elements of the agreement should be made clear.