“美國離職後競業禁止條款”之適用探討－兼比較我國法

曾勝珍

doi:10.30094/NCCULJ.200401.0010

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P395 - 443

Social Sciences > Law

DOI： 10.30094/NCCULJ

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“美國離職後競業禁止條款”之適用探討－兼比較我國法

The Study of the U.S. Cases in Regard to Non-Competition Clauses after Employment Relationship

曾勝珍(Sheng-Chen Tseng)

中正大學法學集刊； 14期 (2004 / 01 / 01) ， P395 - 443

繁體中文 DOI： 10.30094/NCCULJ.200401.0010

競業禁止條款；僱傭關係；保密契約；誠信原則；衡平原則；營業秘密；不公平競爭； Non-Competition Clauses ； Employment Relationship ； Non-disclosure Covenant ； Good Faith ； Equitable Principle ； Trade Secrets ； Unfair Competitions

Abstract │ Times Cited (9) │ Altmetrics

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Employee misappropriation of trade secrets in today's globalized, high-technology economy poses a real and substantial threat. This article is intended to provide a general overview of the law in the United States regarding covenants not to compete and confidentiality agreements. In order to gain a competitive advantage, businesses are often required to make a substantial investment in employee training and development, in developing and maintaining goodwill with its clients and prospective clients, and in new products and information systems.
A restrictive covenant generally limits a former employee's ability to compete for a reasonable period of time. Although restrictive covenants are type of restraint of trade, the common law rule is that a post-employment restrictive covenant is enforceable if it is ancillary to an employment agreement, reasonably limited in scope and duration and designed to protect legitimate business interests, without imposing undue hardship on the employee or harm to the public.
This article discusses about non-competition clauses, customer non-solicitation covenants, employee non-solicitation covenants, non-disclosure covenants, and presumption against enforcement, the ”bad faith” analysis, the balancing the equities analysis, especially emphasizes the protection in ”trade secrets” and ”customer relationship”.
A covenant not to compete can generally be crafted to limit a former employee's ability to compete against his or her former employer for a reasonable period of time. U.S. courts have enforced such agreements if they are ancillary to employment, reasonably limited in scope and duration and designed to protect legitimate business interests. In short, employers in all lines of business should conside the possibility of protecting their trade secrets with restrictive covenants and non-disclosure agreements.

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