| Summary: | 碩士 === 東吳大學 === 法律學系 === 94 === The ability to get and retain knowledgeable and capable human resource has gained great importance in modern enterprises. The intellectual property generated by employees is not only an important asset of a company, it is also the core competence for an enterprise in terms of maintaining competitive edges. In modern days, technology is progressing in a rapid speed and the industry structure has been dramatically changed. In order to maintain their competitive edge, companies are pouring a great amount of manpower and resources into innovation. Continuous innovation and getting capable employees have become the major influencing factors for a company to maintain its competitive advantages and continue its research and development. With this trend, businesses are trying to recruit talents from other corporation operating in the same industry to shorten its product and technology development time, hence, creating a new kind of war on knowledge economy.
The flow of human resource is an inevitable result of resource allocation in market economy. However, the situation that employees bring the business and technology secrets from their companies to establish businesses of their own or to work for the competitors of their current employers does happen. In order to prevent the information leak on business secret which can enlarge a company’s market share and enhance its competitive stands, a mechanism called “Prohibition of Business Strife for Resigned Employees” come to the tide of fashion. “Prohibition of Business Strife for Resigned Employees” is not only an important measure for protecting legal business strife, it also helps a lot on creating good business practices and ethics and restoring the order to the market. However, such kind of law and regulation are still lacking in Taiwan. The opinion from the judiciary arena is still in conflict so companies and the workers don’t know what course of action to take or follow. In the early development stage of Prohibition of business strife for resigned employees regulation, there are only some cases in the technology industry. As the regulations widely known, self-awareness of the labor raised and the influences on industry competition greatly increased, the cases are increasing very rapidly, the monetary amount of compensation requested is multiplying and the litigation body is proliferating from between labor and employee to competing companies. Prohibition of business strife for resigned employees has become an important topic needed to be solved quickly in the arena of labor and intellectual property laws.
This paper is based on practice and supported by theories. It starts the discussion by putting the focus on the relationship between business confidentiality and regulation on Prohibition of business strife for resigned employees. It then proceeds to discuss the legitimacy of such regulation from the point of view of law and economic analysis. The paper takes the U.S. and Germany as examples and looks at the logic behind their laws and regulations on this issue. Furthermore, after considering the close relationship across-Straits, there is also a need to do in-depth research into the development of such regulations in China and Taiwan. Through collecting and organizing data on the related regulations, laws, legal precedent, and direction for making new laws, this paper analyzes the current condition and future trend in China. The paper also observes the evolution of legal opinions, organizes deciding points for making judgments in a court of law, analyzes current trends and regulating agency’s opinions among cases in Taiwan. By combing theory with practices, this paper proposes concrete suggestions and draft contract terms for employers and employees to deal with precautionary measures before legal actions and possible risk management procedures from the point of views of law and business administration. Based on Taiwan’s current economy condition and cultural background, this research hopes to utilize the mature theories as base and combine with the real experience from other countries to maintain a healthy legal order for Prohibition of business strife for resigned employees. It can help us to achieve the goals of balancing beneficiary conflict among all parties, give consideration to the whole industries and maintain continuous progress to the economy, therefore increase Taiwan’s competitive ability in world economy.
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