A Comparative Study on Post-Employment Covenants Not to Compete between Taiwan and Japan
Date Issued
2011
Date
2011
Author(s)
He, Zong-Lin
Abstract
In recent years, the covenant not to compete gradually expanded to every single profession, not only to high technology businesses but also to lower position labors. They are always requested to sign the post-employment covenants not to compete by their employers. However, the labors could not make flexible use of their knowledge and skills to live which conflicts with the occupational option rights, the right to work or the right to live when they have the duties of the post-employment covenants not to compete. It must therefore be set up valid conditions for giving consideration to the rights to both labors and employers.
With regard to the review criteria of the covenant not to compete, the theories of five criteria, four criteria and three criteria have been widely used in practice of court in our country. After further research, my findings indicated that the criterion of judgement is in fact based on Japan case law theory. It is clear therefore that the Japan case law theory is worth referring while having a judgment of review criteria, and to improve the precision and the predictability of practical judgment.
In terms of post-employment covenants not to compete, there are still no consistent opinions in our country. However, after the Council of Labor Affairs proposed the amendment and to clearly stated the conditions of covenants not to compete, the problem of divergence of views might be solved.
Whereas, the legitimacy and rationality of covenant not to compete (proper benefit, region, period, compensation payment, etc.) must be in accordance with all kinds of businesses and to form a criterion according to case accumulation by judicial authority. On this basis it may be inferred that it seems still more effort must be invested into the covenant not to compete in our country before it can mature.
Subjects
the post-employment covenant not to compete
compensation payment
trade secrets
the right to work
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