竞业限制协议滥用反垄断规制的理论检证

The Justification for Antitrust Regulation on Abuse of Non-compete Agreements

  • 摘要: 用以维护企业商业秘密和防止“搭便车”的竞业限制协议,可能被滥用而异化为排除、限制竞争行为,但劳动法内部的规则调适无法抵消协议的反竞争效果,且当前也缺乏取缔竞业限制制度的实践基础与学理支撑。相比之下,反垄断法的介入有其正当性:公共利益理念构成竞业限制协议滥用反垄断规制的法理基础,同等准用于劳动力市场竞争秩序的维护阐释了反垄断法适用的实践逻辑。但是,竞业限制的反垄断法规制有其功能限度,因而应当确立保护竞争过程、关照劳动者福利的价值目标,进而通过竞争影响合理分析的个案化考量,实现反垄断法和既有规制路径之间的合理调适。

     

    Abstract: Non-compete agreements used to maintain the trade secrets of enterprises and prevent "free riding", may be abused, and alienated into anti-competitive practices. However, the internal improvement of labor law cannot correct the anti-competitive effect of the agreements, and there is also a lack of practical and doctrinal support for outlawing the non-compete agreements. The antitrust regulation on the abuse of non-compete agreements is justified: on the one hand, public interests constitute the legal basis of antitrust enforcement; on the other hand, the logic of the application of antitrust law is that it is equally applicable to the maintenance of competition order in the labor market. Notwithstanding, the antitrust treatment of non-compete agreements has its limits. It should establish the legislative objectives of prioritizing competition and indirectly preserving the welfare of workers, and subsequently, through the case study of reasonable analysis of competitive effects, finally strengthening the interaction between the antitrust law and the existing regulatory paths to regulate the abuse of non-compete agreements.

     

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