商业秘密保护中的竞业限制问题的法律研究

竞业限制制度作为一项保护雇主的商业秘密，平衡雇主和雇员问要求合法竞争和争取自由权的制度安排在发达国家中已经广泛应用，但由于我国目前缺少一部统一的保护商业秘密的法律，对竞业限削的规定尚未形成完整的法律体系。为保护企业的商业秘密和公平竞争，同时保护雇员的劳动权和生存权，现实中有必要建立一部统一的法律对现存的竞业限制制度加以完善。     

论竞业限制协议泛化适用的法律规制 ——以不可避免披露原则的引入为中心

竞业限制协议的泛化适用不利于劳动者权益保护和科技创新发展，而当前我国竞业限制协议泛化 适用问题非常严重，亟须予以规制。“负有保密义务的人员”的理解与适用偏差、竞业限制的保护客体界定不清、 司法审查偏重形式是竞业限制协议泛化适用的重要原因。不可避免披露原则作为一种法定利益衡量机制可以有效 平衡商业秘密保护与离职员工自由择业，根据我国现实司法情况及具体法律制度对其进行适当限制，并以一种合 理的适用途径引入我国，可以很好地解决竞业限制协议泛化适用问题。     

在竞业限制期内可否解除竞业限制协议

《工友》编辑部：我在一家公司的技术部门工作。当初进公司时，公司与我签订的劳动合同中约定了保守用人单位的商业秘密和竞业限制条款，并约定了公司在竞业限制期限内按月给予我经济补偿的条款。我的劳动合同终止后，没有与公司续签。我离开该公司半年来一直恪守竞业限制协议，但该公司一直未支付经济补偿补偿金。请问，我可否请求解除竞业限制协议？ 秦明荣     

雇员对雇主财产损害赔偿责任规则探析

雇员对雇主负有法定、约定或其他义务,雇员对其义务的违反给雇主造成财产损害,需要对雇主承担赔偿责任。鉴于劳动关系的特殊性,雇员赔偿责任规则应有别于普通民事赔偿规则,雇员只在具有中度过失以上过错时才需承担赔偿责任,且不以全部赔偿为原则。雇员赔偿范围的确定应当遵循可预见性原则、适用过失相抵并兼顾雇员过错程度,此外还需在支付方式和数额上予以限制。对此发生的争议属于劳动争议,首先应当结合劳动争议的特殊性依照劳动法律进行裁判。     

论保密协议与竞业限制协议法律效力的界定

保密协议和竞业限制协议是不同的法律概念。用人单位在劳动合同履行过程中发放的保密费不同于竞业限制补偿金。用人单位要求劳动者在离职后履行竞业限制的义务,必须支付经济补偿金,否则竞业限制条款不生效;保密是劳动者应尽的义务,支付保密费不是离职后职工承当保密义务的前提。     

解雇预告期的问题与出路——兼评我国《劳动合同法》第40条

根据国际劳工组织相关公约和许多国家的立法,在无过错解雇中,雇主解雇雇员必须经过一定的解雇预告期,而解雇预告期的具体期间大多没有统一规定,需要考虑雇员的工作年限、工作岗位、再就业难度等复杂因素.目前我国《劳动合同法》第40条的相关规定过于简单并存在缺陷,且替代性的“代通知金”的立法设计在司法实践中也会弱化解雇预告制度的维权功能.当前应借鉴国外的立法经验,建立既具有可操作性又能保障雇员切身权益的法律规则.     

离职竞业限制违约金问题探究

目前,很多离职竞业限制合同没有约定给付劳动者补偿金,却约定了劳动者违反竞业限制义务时应承担的违约金责任,对于这样的违约金条款是否具有法律约束力存在激烈的意见分歧。我国现行立法对此未做明确的规定,一些地方为便于执法则做出了各自不同的规定,导致司法实践中的法律裁决也存在巨大的差异。从合同权利的性质、当事人的法律地位以及法律维护合同实质公平的角度来看,离职竞业限制合同应当无效,违约金责任也不具有法律效力。在现实经济活动中,已约定补偿金的离职竞业限制合同,几乎同时也约定了劳动者违反竞业限制义务时的违约金责任,一些合同在给予劳动者较低的补偿金的同时,却要求劳动者违约时须承担巨额的违约金。如此一来,该违约金应如何处理就成了这类案件争议的焦点。对此,应在立法上弥补相应的缺失,明确规定无补偿金条款时该离职竞业限制合同无效,则违约金条款也无须履行;对于已约定补偿金的,也应提出补偿金数额方面的强制性要求,并明确违约金可调整的样态。     

雇主责任中雇佣期间的认定规则

在雇主责任的司法裁判和理论研究中,关于雇员的何种行为属于雇佣期间应由雇主承担责任,即关于职务行为的认定问题一直是雇主责任中最具争议的问题。雇佣期间的认定和雇主责任的制度机理、时代发展密切相关,与受害人的人身损害赔偿不可分割。借鉴英美法的紧密联系标准和牵连性规则,雇佣期间的认定可采取:为雇主利益标准;紧密联系标准;保护受害人标准和雇主责任推定标准。     

竞业限制的区域到底有多广？

《工友》编辑部：我公司办公地点在武汉，公司招聘的一些员工，由于岗位的性质，与部分人员签订了竞业限制协议。不久前，公司一员工跳槽到深圳的一家公司工作，由于该公司与我公司经营的业务相同。在签订的竞业限制协议中没有约定竞业限制的地域。请问：该员工是否应受竞业限制的约束？钱微微     

罗马尼亚工会在养老保险制度改革中的作用及启示

自20世纪90年代以来,罗马尼亚对传统的养老保险制度进行了改革,在改革过程中,工会为了维护工人的权益发挥着重要作用。 一、罗马尼亚的养老保险制度改革（一）实行全国统一的基本养老保险制度。1992年前,罗马尼亚的养老保险制度采取的是待遇确定型（DB）现收现付制计划,雇主和雇员对于养老保险基金有缴费的法律义务,自我雇佣者和非典型劳动合同者可以自愿参加,但参与水平较低。     

Introduction to queer circuits: Critical performance and digital praxis

This introduction situates the articles making up this special issue within four thematic clouds, positing queer theorization as broadly relevant for critically engaging with computational technologies and culture. These sub-themes offer suggestions for future queer inquiry and praxis and reflect key terms in performance studies and queer theory that have undergone transformation with the ubiquity of digital technology.     

Women,Science and Culture: Science in the Nineteenth-century Periodical

The Victorian periodical press offers unique insights into many diverse areas of nineteenth-century experience, and the complex relations between gender, science and culture in particular, yet it has been consistently marginalized as a primary resource in academic study. The Science in the Nineteenth-century Periodical (SciPer) project at the universities of Sheffield and Leeds is creating a new point of access to a wide range of non-specialist periodicals across the century by means of a fully searchable electronic index. By detailing the entire contents of each journal, and not just those articles that have a clear scientific relevance, it becomes clear that science formed a fundamental and integral part of nineteenth-century culture. The electronic index, moreover, will include hypertext cross-reference links that will allow the user to identify a dialogic pattern of encounters between ostensibly diverse articles, rather than only to browse in a simple chronological mode. By adopting this innovative approach, the SciPer database will reveal the manifold intertextual relations between the fictional works of women writers like Elizabeth Gaskell and the scientific articles that often appeared in the pages of the same magazines, and will show that writers of both sexes and across several different genres actively engaged in vibrant interdisciplinary debates concerning scientific issues in a forum provided by the periodical. Although the SciPer database itself is not specifically focused on issues of gender, the index will include several periodicals aimed explicitly at a female readership and, by providing access to titles still rarely utilized in modern scholarship, it will offer further insights into the important contemporary debates about women and science, as well as the more subtle ways, in which gendered imagery was employed within scientific discourse. This article details some critical findings from Punch , The English Womans Domestic Magazine , Cornhill Magazine and the Review of Reviews .     

The Liquefaction of Desire: Music,Water and Femininity in Victorian Aestheticism

This article reconsiders Victorian images of mermaids and sirens through a detailed examination of two images: Frederic Leighton's Lieder ohne Worte (1861, oil on canvas, Tate Britain) and Edward Burne-Jones's The Depths of the Sea (1886, oil on canvas, private collection). It demonstrates that the themes of water, music and femininity were entwined in the Victorian imagination, by setting these two paintings within the context of Victorian artistic, literary and cultural production. It shows that musical images were prevalent in the emerging Aesthetic movement. Musical subjects freed artists and audiences from the conventions of narrative interpretation, and allowed them instead to concentrate on exploring mood and colour.

Pictures of mermaids add a further twist to the Aesthetic preoccupation with music. This article reveals that mermaids made explicit the underlying connection between musical performance and sensuality. It also suggests that the idiosyncratic depiction of the mermaid by Burne-Jones and the ambiguous sexuality of Leighton's figures could be read as symptomatic of changing conceptions of desire. It argues that these images embodied the shift from ardour to libido. In other words, love was no longer described as burning and fixed, but as fluid and shifting. This transformation in the way desire was theorised was most urgently presented in Freud's Three Essays on Sexuality (1905). However, this article suggests that the same ideas were being made visible in Aesthetic art and writing from the mid-nineteenth century.     

Carnal teachings: raunch aesthetics as queer feminist pedagogies in Yo! Majesty's hip hop practice

This essay puts forward a notion of “raunch aesthetics,” theorizing raunch as an aesthetic, performative, and vernacular practice: an explicit mode of sexual expression that transgresses norms of privacy and respectability. Raunch aesthetics describe creative practices that often blend humor and sexual explicitness to launch cultural critiques, generate pleasure for minority audiences, and affirm queer lives. The author activates her formulation of raunch in analyzing Yo! Majesty, a hip hop group comprised of black female emcees who openly describe their sexual desire for women, and explores how the queer youth of color she works with have responded to their music. Working beyond the unexamined moralisms that give critiques of raunch culture their legitimacy, the author argues that Yo! Majesty's raunch aesthetics transmit queer and feminist teachings. While celebrating carnal pleasures, these artists critique heterosexism, subvert narratives about the incompatibility of belief in Christ and queer sexualities, and trouble notions concerning the emancipation of coming out of the closet and declaring a stable homosexual identity. In demonstrating how raunch aesthetics generate consciousness raising, the author discusses how her youth participants critically read and consume hip hop while negotiating unwieldy meanings of sexuality and gender presentation.     

Feminism, Aestheticism and the Limits of Law

This article seeks to identify and address the normative void that resides at the heart of postmodernist-feminist theory, and to propose a philosophical framework – beyond postmodernism, but incorporating its central insights – for thinking through the normative questions with which feminists are inevitably confronted in their engagements with positive law. Two varieties of postmodernist-feminism are identified and critically analysed: the ‘corporeal feminism’ of Elizabeth Grosz and Judith Butler, which seeks to ground feminist critical practice in the irruptive capacities of the material body considered as an arte fact of social construction; and the deconstructionist feminism of Drucilla Cornell, for whom ‘the feminine’ is an indeterminate but disruptive force beyond its construction in law and in other social sites. The first component of the argument elaborated here is that each of these approaches ultimately reduces to a form of aestheticism which is incapable of generating a worthwhile and workable feminist approach to the restructuring of politics and law. The second component of the argument involves a return to aesthetics, in particular to the philosophical aesthetics of Kant’s Critique of Judgement. Kant’s aesthetic philosophy, it will be suggested, yields a framework of concepts which, duly re-manipulated, could speak to the very concerns that have inspired postmodernist-feminism: how to attend to (bodily) particularity while avoiding the dangers associated with ‘essentialism’; and how to theorise the propensity of the unrepresentable power of the feminine to exceed both embodied human capacities and the confining rein of socially privileged rationalities. Crucially, however it also responds to a set of preoccupations – those of the feminist lawyer – that cannot be accommodated by postmodernism: how to translate embodied experience into (legal) norms; generalise from the particular; seek consensus; and codify an endless potentiality in the form of law. This revised version was published online in July 2006 with corrections to the Cover Date.     

The Unexpected: Bionic Woman at the Millennium

Wilfred Bion's A Memoir of the Future provides a point of departure for feminist thinking about the millennium. Bion problematizes hopes for the future and associates thought with catastrophic change. Women play an unexpected role in Bion's experimental autobiography, posing provocative questions and unsettling the status quo . Since Bion has little to say about women in his clinical writings, A Memoir sheds light on his thinking and on the post-Kleinian culture of the 1970s. Book I of A Memoir depicts a class- and sex-nightmare played out between men and women, and women and women, in an age of anxiety whose setting appears to be the fascist 'pacification' of Middle England during an unspecified period. In this hallucinatory drama, all encounters are reduced to a brutal fiction of dominance and submission. The violence of the action suggests the primitive mental world of psychosis. Book II of A Memoir satirizes 'the brilliance of masculine thought' through the voices and criticisms of women. But this is the purgatorial movement of Bion's autobiography, inhabited by 'idées mères' (untransformed beta-elements) and haunted by the ghosts of Bion's traumatic war-time experience. A monstrous plot is hatched to kill primitive, fascistic Man, who retaliates and takes the female spoils. Is this the prelude to catastrophic change? Book III stages a country-house debate between different characters who represent aspects of Bion's personality, recapitulating the concerns of his later writing. The debate includes a meditation on childbirth as compared to war trauma, but Bion takes his distance from feminine intuition or common sense. Women fight on both sides of the barriers in the Bionic revolution - becoming, however, figures for the 'unexpected' and precursors of emotional upheaval. The gendering of millennial thought in Bion's Memoir provides an opportunity to scrutinize our own unthought fantasies of change.     

Guessing in the Gaps

The genesis of this conversation was the forthcoming new Penguin edition - under the general editorship of Adam Phillips - of the works of Freud. Mark and Phillips consider the concept of a 'literary' Freud alongside the 'scientific'or 'clinical' Freud, and discuss the related issues of translation, representation and interpretation, particularly as they bear on psychoanalytic writing. Adam Phillips's relationship to the institutions of psychoanalysis is considered, and the perpetuation of these institutions through the training of psychoanalysts and psychotherapists. Also discussed is the project of psychoanalysis: the nature of psychoanalysis as a therapy as well as a body of ideas. Mark and Phillips make reference to the work of Freud, Lacan, Klein, Winnicott and Laplanche, and to concepts such as the 'enigmatic signifier' and 'transgenerational haunting'.     

The Between

Thinking with this special issue's group of feminist thinkers – some artists and others scholars – this introduction makes a strong case for co-authorship and a more collaborative humanities, while also insisting that the couple form – that stalwart object of queer and feminist theory – is neither a known quantity nor an exhausted entity, but rather, a field ripe for analysis. Situated squarely within performance studies, this introduction pivots away from questions of ontology and toward method and performativity, in order to ask: what modes of intellectual practice, erotic exchange, political work, and aesthetic experimentation happen uniquely within couple forms, in their most capacious and non-self-same iterations? What queer and feminist work can they do? What, in other words, is possible in the infinity, if indeed it is an infinity, between one and two?     

Beyond the scarcity scare: reframing the discourse of hunger with an eco-mind

Solutions to world hunger continue to be impeded by a frame – a set of assumptions – that keeps much of humanity focusing narrowly on quantitative growth. The result is greater food production and greater hunger. Yet, across the world another way of seeing, one grounded in the relational insights of ecology, is transforming food systems in ways that both enhance flora and fauna and strengthen human relationships, enabling farmers to gain a greater voice in food production and fairer access to the food produced.