離職後競業禁止之違約金酌減及不作為請求之研究
－以我國法院裁判之分析為中心

企業為維持其競爭優勢，避免勞工跳槽或遭挖角，而洩漏其商業機密等重要資訊，常見雇主要求勞工簽訂離職後競業禁止約款，並附加違約金條款或相關賠償之約定，以促使勞工履行競業禁止義務。　　本文針對勞工違反競業禁止義務而須給付違約金，彙整我國實務上為違約金酌減時之審酌因素，並歸納出影響違約金酌減數額多寡之重要因素，以期能提供較為具體、可預測的違約金酌減判斷標準。　　另為使勞工履行競業禁止約款，除訂定違約金條款外，更直接之方式是訴請法院命勞工履行競業禁止義務之不作為請求。而雇主對勞工之不作為請求於我國法制上有以聲請定暫時狀態處分及以本案請求等二種方式。本文整理我國實務對於前揭二種方式所為不作為請求之准駁情形，並嘗試重新建構法院對不作為請求准駁之判斷標準。　　惟為因應各行業之特性，就違約金酌減之審酌因素，以及不作為請求准否之判準，仍須透過大量司法實務案例的累積始能益見清晰。從而，我國實務就此之後續發展仍值得觀察與討論。

關鍵字

離職後競業禁止；勞動基準法第9條之1 ；違約金酌減；定暫時狀態處分；不作為請求

並列摘要

For the purpose of an enterprise to maintain its competitive advantage, and avoid the laborers to leak information such as the commercial confidentiality due to job hopping to or getting hunted by another organization, in addition to the Liquidated Damages and Penalty or the related compensation agreement, the employer often demand the laborers’ to sign the Post-Employment Covenants Not to Compete to urge the laborers to oblige to Non-competition article. As a result, this thesis aims at the Liquidated Damages and Penalty incurred from disobedience against Non-Competition obligation, and integrating the examination factors of adjustment of Liquidated Damages and Penalty, plus generalization of the important factors of what influences the extent of Liquidated Damages and Penalty, so that the more concrete and more predictable judgement standard for Adjustment of Liquidated Damages and Penalty can be provided and maintained. In the meantime, to urge the laborers to implement the Post-Employment Covenants Not to Compete, other than setting up the Post-Employment Covenants Not to Compete, a more direct method is to appeal to the court to demand the laborers to carry out the Request for Injunction, so that the Non-Competition in the Post-Employment Covenants Not to Compete can be enforced. In regard of the employer’s Request for Injunction, in Taiwan, there are two practices—one is to appeal to the status quo injunctions, and the other is to make the request for the case. In this thesis, grant or denial for the Request for Injunction in the just mentioned two practices is organized, and the court’s judgement standard for grant or denial of the Request for Injunction is attempted to be reconstructed as well. However, due to the characteristics of each trade, for examination of adjustment of the Liquidated Damages and Penalty, as well as the judgement standard for the Request for Injunction, a great quantity of accumulated judicial practical cases are still needed. Consequently, in Taiwan, the subsequent development of the actual practice is still worthy of further observations and discussions currently.