论文标题:竞业禁止之研究
Disposition of Error in Cognition of Irregularity
论文作者 潘东翰
论文导师 李昌麒,论文学位 硕士,论文专业 经济法
论文单位 西南政法大学,点击次数 129,论文页数 46页File Size2580k
2004-04-20论文网 http://www.lw23.com/lunwen_144059862/ 信贷资产证券化,风险隔离,特殊目的载体
credit asset Securitization, risk-remote, special proposes vehicle(SPV)
专利法、营业秘密法、智能财产权法及竞业条款等，在资本主义经济活动中向来不缺席，除了智能财产权法外，其它几项规范早已伴随资本主义经济活动有几百年历史了。随着知识经济产业的蓬勃及企业竞争的程度愈来愈高，这相相关法律规范的重要性有增无减。 这是因为若要指出知识经济时代的劳资关系有不同于以往者，大概就属忠诚保护的权利义务了，在传统雇佣关系下，劳资双方互负忠诚保护义务，彼此间权利义务的履行，是以雇用期间为限。然而，知识经济时代，诚如所言，知识本身就是生产工具，它是可携带的，又是可移动的，有别于过去生产工具掌握资方手上，劳方是附属且束缚于生产工具之下，而今情况是，人在哪儿，生产工具就在哪儿，这对雇用关系的确构成极大的挑战。劳资双方互负忠诚保护义务的期间究竟该如何订定?劳资关系的终止，是否也是该权利义务之终止? 近年来由于经济自由化之导向，各事业面临之竞争亦益趋激烈，未谋自身竞争力之确保，常见各事业挹注大量资金于产品、技术之研发以及人员之培训，冀于其国内或国际之经济市场占有一席之地，也因此，如何维护该等投入大量金钱、人力即时间所发展获得之无形资产，包括事业营业秘密之保密及避免员工为竞业行为、恶意跳槽、或遭恶意挖角，亦成为事业之重要课题。 台湾过去十多年来，因这些规范引发的诉讼争议也愈来愈多，其中「竞业禁止条款」牵涉到受雇者离职后的工作限制，比较起上述其它规范有性质上的差异，历来也不乏学界及法律实务界的关注，西方对此议题，一直有持续的辩论，法院也累积出裁判原则。个人自投入此一问题之研究后，深觉研究此一竞业禁止问题涉及经济学、公共政策、人力资源、营业秘密及公平交易法等范畴，随着全球国际化及经济自由之发展，实有必要将此一问题中结合相关研究，期能与国际接轨，亦能更符合本土之需求。
Patent Act, Business Secrets Act, Intellectual Property Right Act, and Conflict of Interests Regulations are an integral part of capitalism economic activities. Except Intellectual Property Right Law, other laws and regulations have coexisted with the economic activities for several hundred years. As knowledge economy is booming and business competition becomes fiercer, these related acts and regulations also become more important.This is because the labor-proprietary relations in a knowledge economy is different from old economy. The major difference is the rights and duties to protect fidelity. Under traditional employment, the labor and the proprietary have a duty to each other to protect fidelity. The exercise of rights and performance of duties were limited to the employment contract period. In a knowledge economy, however, knowledge is the production tool per se. It is portable and mobile. This is different from the past, when the proprietary controlled the production tools and the labors were accessories and attachment to these tools. Now the production tool is man himself, they move together. This poses a great challenge to employment relations. For example, how do we delineate the period during which the labors and the proprietary have to maintain their fidelity to each other? Does the termination of employment contract signify the end of those rights and duties?Nowadays, due to economic liberalization, business competition becomes even fierce. To ensure their competitiveness on international and local markets, it is common for businesses to invest heavily in R&D and employee training. By the same token, it is also important for businesses to protect their intangible assets out of these investments. The issues involved include safeguarding the business secrets and preventing employees from conducting conflict-of-interest activities, hostile job-hopping, and avoidinghostile poaching by other businesses.In Taiwan, litigations involving these issues have been increasing since last decade. Of all the acts and regulations, "Conflict of Interests Regulation" deals with the employment restrictions after employees leave their jobs. This regulation is different from other acts in nature and has attracted quite some attention from academia and legal profession alike. There are continued debates and a lot of court precedents accumulated in western society. The author firmly believes the conflict-of-interests issue involves the areas of economics, public policy, human resources, business secrets and fair trading act ever since the author started researching this topic. As the increasing development of globalization and economic liberalism, it is necessary to adopt an inter-disciplinary approach to studying this issue, so as to conform to international standards and accommodate local needs.
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