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초록· 키워드
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In order to discuss the Duty f non-competition, it is important to consider the validity of non-competition covenants, protection of business secrets under the Prevention of Unfair Competition Act, while taking into account their functions, roles and interrelationship. From this fundamental perspective, this study aims to consider the German legal system to come up with an interpretation to solve similar problems in the Japanese legal system.
The characteristics of the German legal system on the confidentiality obligations of business secrets in post- employment context are:
(1) The determining principle of protecting employees’ legitimate interests in the legal system of the confidentiality obligations of business secrets in post-employment context originated from the protection of business secrets under the Prevention of Unfair Competition Act 1896 and non-competition covenants under the commercial law in 1897.
(2) The insufficient protection of business secrets under the Prevention of Unfair Competition Act is complemented by other sections of the Act and the law on illegal conduct under the Civil Code (BGB). The main principle is maintained to allow employees to use knowledge and capacity legitimately obtained during the employment without restriction in post-employment context.
(3) There is an ongoing debate at a theoretical level on the post-employment validity of confidentiality obligations of business secrets. However, the principle clarified above in the legislative process of the Unfair Competition Act is still maintained. Thus it is normally recognised that employees’ legitimate interests in employment as to business secrets cannot be limited.
Non-competition covenants in German Commercial Code(HGB) has the following significance and characteristics.
(1) The German legislature, faced with the dilemma to protect corporate competitiveness and employees’ freedom of occupation, sought to protect the business secrets through the enactment of the Prevention of Unfair Competition Act at the same time minimising the validity and scope of non-competition covenants.
(2) In the process of the prolonged deliberation and drafting of the permissibility and necessity of non-competition covenants, it became clear that the purpose and justification of the restriction of non-competition covenants is to protect customers and important property values such as business secrets.
(3) The reform of commercial law in 1914 finally adopted a strict regulation which required financial consideration as an essential condition. It is because the legislature recognised the financial consideration as a preferable way of regulating non-competition covenants of the reciprocal nature and the most effective way to prevent the abuse of non-competition covenants by employers in terms of legal validity.
In conclusion, based on the study of the German legal system, I suggest the interpretation as below:
(1) As the scope and content of Duty of non-competition are varied, even provisions which do not prohibit employment at a different company in the same industry are capable of seriously limiting employees’ legitimate interests in freedom of occupation. Therefore, all agreements which attempt to limit employees’ freedom of occupation in post- employment context should be interpreted as non-competition covenants. This is the very reason why the German Commercial Code widely defines the concept of non-competition covenants. In this respect, the validity of the confidentiality obligations of business secrets should be determined according to the standards applied to determine the validity of non-competition covenants.
(2) Before discussing the validity of non-competition covenants, it is necessary to examine whether a contract restricting employees’ freedom of occupation in post-employment context is valid in terms of the constitutional values. The importance of such consideration is clearly shown by the German legislative history of non-competition covenants. The introduction of the strict condition of financial consideration in Germany is probably a result of such consideration.
(3) Financial consideration has the balancing effect of moderating the disadvantage a employees suffers by an employer imposing an unnecessary obligation on the employees in post-employment context.
The characteristics of the German legal system on the confidentiality obligations of business secrets in post- employment context are:
(1) The determining principle of protecting employees’ legitimate interests in the legal system of the confidentiality obligations of business secrets in post-employment context originated from the protection of business secrets under the Prevention of Unfair Competition Act 1896 and non-competition covenants under the commercial law in 1897.
(2) The insufficient protection of business secrets under the Prevention of Unfair Competition Act is complemented by other sections of the Act and the law on illegal conduct under the Civil Code (BGB). The main principle is maintained to allow employees to use knowledge and capacity legitimately obtained during the employment without restriction in post-employment context.
(3) There is an ongoing debate at a theoretical level on the post-employment validity of confidentiality obligations of business secrets. However, the principle clarified above in the legislative process of the Unfair Competition Act is still maintained. Thus it is normally recognised that employees’ legitimate interests in employment as to business secrets cannot be limited.
Non-competition covenants in German Commercial Code(HGB) has the following significance and characteristics.
(1) The German legislature, faced with the dilemma to protect corporate competitiveness and employees’ freedom of occupation, sought to protect the business secrets through the enactment of the Prevention of Unfair Competition Act at the same time minimising the validity and scope of non-competition covenants.
(2) In the process of the prolonged deliberation and drafting of the permissibility and necessity of non-competition covenants, it became clear that the purpose and justification of the restriction of non-competition covenants is to protect customers and important property values such as business secrets.
(3) The reform of commercial law in 1914 finally adopted a strict regulation which required financial consideration as an essential condition. It is because the legislature recognised the financial consideration as a preferable way of regulating non-competition covenants of the reciprocal nature and the most effective way to prevent the abuse of non-competition covenants by employers in terms of legal validity.
In conclusion, based on the study of the German legal system, I suggest the interpretation as below:
(1) As the scope and content of Duty of non-competition are varied, even provisions which do not prohibit employment at a different company in the same industry are capable of seriously limiting employees’ legitimate interests in freedom of occupation. Therefore, all agreements which attempt to limit employees’ freedom of occupation in post- employment context should be interpreted as non-competition covenants. This is the very reason why the German Commercial Code widely defines the concept of non-competition covenants. In this respect, the validity of the confidentiality obligations of business secrets should be determined according to the standards applied to determine the validity of non-competition covenants.
(2) Before discussing the validity of non-competition covenants, it is necessary to examine whether a contract restricting employees’ freedom of occupation in post-employment context is valid in terms of the constitutional values. The importance of such consideration is clearly shown by the German legislative history of non-competition covenants. The introduction of the strict condition of financial consideration in Germany is probably a result of such consideration.
(3) Financial consideration has the balancing effect of moderating the disadvantage a employees suffers by an employer imposing an unnecessary obligation on the employees in post-employment context.
목차
Ⅰ. 서설
Ⅱ. 경업금지의무의 개념
Ⅲ. 부경법상의 영업비밀보호와 경업금지의무
Ⅳ. 경업금지계약의 유효요건
Ⅴ. 결어
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