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The Study of the prohibition on employee's transfer to a competitor

  • DONG-A LAW REVIEW
  • 2016, (70), pp.307-341
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Kang Myung Soo 1

1제주대학교

Accredited

ABSTRACT

Prohibition of competitive transaction or prohibition of taking jobs on competing companies prohibit managers or workers cannot work for competing companies in same or similar business field or for same or similar task after termination of contract of service. That has been a subject of studies in UNFAIR COMPETITION PREVENTION AND TRADE SECRET PROTECTION ACT and LABOR STANDARDS ACT. However, there is no clear division between prohibition of taking job on competing companies and prohibition of dealing with same or similar tasks, and those two terms are commonly used. Two terms should be clearly divided since those terms restrict workers in consideration of freedom of occupation. Based on that, requirement and tolerance range of prohibition of competitive transaction or taking jobs on competing companies should be studied. Requirement or tolerance range of prohibition of taking jobs on competing companies compared to those of prohibition of competitive transaction should be strictly limited. Since previous studies were not able to give a detailed analysis for those requirement or tolerance range, it is necessary to study properly to give a detailed analysis for those requirement or tolerance range to apply prima facie standard given by precedents. In addition, prohibition of taking jobs on competing companies is accepted under certain conditions even though there is no contract of prohibition of taking jobs on competing companies to protect trade secret of business. therefore, there is no difference whether there is contract of prohibition of taking jobs on competing companies or not. In other words, prohibition of taking jobs on competing companies is accepted to protect trade secret of business whether there is contract of prohibition or not. However, there should be differentiated between there is contract of prohibition and there is no contract of it since that decides whether obligation duty can apply to workers or not. Thus, there should be studies and researches to define specific differences in prohibition of taking jobs on competing companies based on whether there is contract of prohibition or not. In addition, about prohibition of taking jobs on competing companies, it is necessary to demand strict proof of existence of prohibition of taking jobs on competing companies, to investigate effectiveness of prohibition of taking jobs on competing companies, and to find standard on exclusion of application. It is also necessary to consider effectiveness of breaching the prohibition between prohibition of competitive transaction and taking jobs on competing companies and to affirm the contract which is the amount of compensation for breaching the prohibition. Based on this, we should establish general system of prohibition of taking jobs on competing companies.

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