著者

樫原 義比古

出版者

日本法政学会

雑誌

法政論叢 (ISSN:03865266)

巻号頁・発行日

vol.44, no.2, pp.165-177, 2008-05-15

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Restrictive covenants such as non-competition and non-disclosure, as employers think about the need to protect business interests, have long been present in many Japanese employment contracts. Courts, however, have been doubtful of such restrictive covenants and sometimes have refused to issue injunctions to enforce them. The reality that there are no clear rules regarding enforceability of restrictive covenants can be frustrating for employers who are left with no reliable means of keeping their key employees from joining a competitor or competing themselves. Faced with a similar problem, employers in England developed a concept called "garden leave" and this arrangement has been generally accepted and enforced by English courts. Garden leave clauses in England have become common in the employment context, but may they become a tool commonly used by employers to protect their businesses from the dangers inherent when key employees terminate their employment in Japan? The purpose of this article is to examine the question as to whether garden leave provides appropriate safeguards and should be enforced by courts. In analyzing garden leave clauses in an era of high employee mobility, it is difficult to rationalize the need for the garden leave doctrine in Japan.