근로자의 경업금지의무와 계약

The practice of lifetime employment is collapsing by social change, so the flexibility of employment is increasing. The employee's loyalty for the company is weakened and many problems are disclosed by it. Frequently, the employee leak an obtained trade secret from his past company to new company. One of managements for the employee's conduct is that impose a duty of non-competition for work. But, it makes the problem about whether the duty is sustained to employee after employee's retirement. Imposing the duty of non-competition on the employee hinder in progress of the right to live and the personality of labor because it restrict the right to work and freedom of vocational choice rights. The trade secret shall be protected by the Constitution because it is the intellectual property rights. Eventually, the competition makes the conflict between freedom of vocational choice rights of workers and employer's rights of property on constitution. We shall judge the rationality of a duty of non-competition through a general method of evaluation in the conflict of the constitutional rights. Other remedy for the employee, an elements of the evaluation about the rationality of a duty of non-competition, is necessarily required, because a duty of non-competition is a shape of restrict for the employee in the constitutional rights.