以競業禁止條款保障營業秘密之相關法律問題研究

我國近年高科技產業發展迅速，為了維持產業上之優勢，企業主莫不盡全力保護營業秘密，且多以競業禁止為之；如此或許能有效預防「不可避免揭露」之情況；然而人才自由流動導致知識經驗外溢效果(spillover effect)，將為整體經濟帶發展帶來助益，而遠勝於單一企業之利益保護；如何平衡人才自由流動、整體經濟發展、雇主競爭優勢，誠不無疑義；本文欲就此探討，提出相關建議。另我國雖於104年1月27日修訂勞動基準法，然而對於修法前以訂立之競業禁止，就應如何處理？實務判解歧異；而修法未盡完備，亦衍生諸多問題，實務判解亦有歧異。故本文就上述議題探討，提出相關建議。

關鍵字

營業秘密；競業禁止；不可避免揭露；藍鉛筆原則；合理性原則；外溢效果

並列摘要

In recent years, Taiwan's high-tech industry has developed rapidly. In order to maintain its technological advantages, business owners have tried their best to protect business secrets by Business Strife Limitation Agreement. Business Strife Limitation Agreement clauses may be effective in preventing "unavoidable disclosures"; however, the free flow of talents leads to a spillover effect of knowledge and experience, which will benefit the development of the overall economic belt, which is far better than the protection of the interests of a single company. How to balance the free flow of talents, overall economic development, and the competitive advantages of employers is not in doubt. This study intends to discuss this and make relevant suggestions. In addition, although my country revised the Labor Standards Law on January 27, 2015, how should we deal with the prohibition of business competition that was enacted before the revision? However, there are many problems arising from the revision of the law, and there are also differences in practical judgments. Therefore, this study discusses the above topics and makes relevant suggestions.