從營業秘密保護及競爭法觀點看併購過程中之不招攬條款──兼論與互不挖角協定之差異

An Analysis on the Non-Solicitation Clause Signed during M&A Dealing from the Perspectives of Protection of Trade Secrets and Competition Laws

本文認為，企業於併購過程中為保護其營業秘密、促進併購交易順利推動而與潛在併購對象所簽訂的不招攬條款，與並無保護營業秘密等正當事由，而僅是限制不得相互延攬、挖角彼此員工之互不挖角協定，不論是於其行為形式、限制目的、限制或促進競爭效果、有無正當化事由等事項上，胥皆大異其趣。競爭法當有必要嚴格規範、禁止互不挖角協定，惟對於不招攬條款只要其限制對象、範圍、程度及期間具備合理性，且具有保護營業秘密、確保併購雙方權益、促進併購交易等正當事由，則通常並不會對於相關勞動市場競爭帶來不當限制效果，而有必要肯定其合理性及合法性。

The article argues that non-solicitation clauses that companies sign with potential acquirers in order to protect their trade secrets and facilitate smooth mergers are different from no-poach agreements that serve no legitimate purposes other than restricting each other from soliciting or poaching each other’s employees. These two types of agreements differ significantly in terms of their form, purpose, effects on competition, and possible justifications. Competition law should strictly regulate and prohibit no-poach agreements, but as for non-solicitation clauses, as long as they are reasonable in terms of their targets, scope, degree, and duration, and have legitimate reasons such as protecting trade secrets, ensuring the rights of both parties to the merger, and promoting merger transactions, they usually do not have undue anticompetitive effects on the relevant labor market and should be recognized as reasonable and legal.