WHEN EXECUTING LAWYERS ACTIVITY AS WELL AS TAKING CARE ABOUT CONDUCT IN HIS PRIVATE LIFE, A LAWYER IS OBLIGED TO PROTECT RESPECT AND TO STRUGGLE FOR PROMOTION AND AFFIRMATION OF LEGAL PROFESSION AS AN INDEPENDENT PROFESSION. WHEN EXECUTING LAWYERS ACTIVITY, A LAWYER IS OBLIGED TO ACT IN HUMAN WAY, RESPECTING DIGNITY OF ALL HE CONTACTS WITH. THEN, HE IS OBLIGED TO PRESERVE HIS HONOUR, MORAL CHARACTER, INDEPENDENCE AND EXPERTNESS IN ORDER TO STIMULATE OTHERS WITH HIS CONDUCT. WHEN EXECUTING LAWYERS ACTIVITY, A LAWYER IS OBLIGED TO RESPECT TRUTH AND LEGALITY, INDEPENDENCE OF LEGAL PROFESSION IN ACCORDANCE WITH THE CONSTITUTION AND LAWS. A LAWYER IS OBLIGED TO ENERGETICALLY REJECT ALL TRIES OF INFLUENCE ON HIS INDEPENDENCE IN EXECUTION OF ACTIVITY. HE IS OBLIGED TO INFORM ORGANS OF THE BAR ASSOCIATION ABOUT THESE TRIES. EXECUTION OF ANY COMMERCIAL OPERATIONS, ASSOCIATION OFLAWYERS OFFICES WITH ACTIVITIES OF SUCH EFFECT, I.E. ACTIVITIES THAT DO NOT GIVE LEGAL AID ARE INCOMPATIBLE WITH EXECUTION OF LAWYERS ACTIVITY. OBLIGATION OF A LAWYER IS TO BE CONSTANTLY UNDER PROFESSIONAL IMPROVEMENT, TO READ PROFESSIONAL LITERATURE,PARTICIPATE IN ALL PROFESSIONAL DISCUSSIONS, CONSULTATIONS, AND CONGRESSES, IN ALL ACTIONS OF LEGAL PROFESSIONS BY WHICH IMPROVEMENT AND AFFIRMATION OF THIS SERVICE ARE ACHIEVED, AND TO IMPROVE HIS GENERAL EDUCATION. A LAWYER HAS TO HELP WITH HIS PROFESSIONAL KNOWLEDGE OTHER LAWYERS, AND HE IS ESPECIALLY OBLIGED TO HELP PROFESSIONAL TRAINING OF LAW CLERKS IN LEGAL PROFESSION. A LAWYER IS OBLIGED TO GIVE LEGAL AID TO A CLIENT FOR WHICH HE KNOWS THAT IS NOT IN POSITION TO PAY FOR SERVICE, OR A CLIENT THAT IS ASSIGNED TO HIM ACCORDING TO THE SCHEDULE DETERMINED BY AUTHORIZED ORGAN OF THE BAR ASSOCIATION, I.E. OTHER ORGANIZATION ACCORDING TO THE DECISION OF THE BAR ASSOCIATION, AND THE BAR ASSOCIATION BEARS THE COSTS. IT IS NOT APPROPRIATE THAT A LAWYER IS A PERSON THAT ACTS AGAINST INTERESTS OF LEGAL PROFESSION AND WHO DOES NOT RESPECT RULES OF THIS CODE. WHEN EXECUTING LAWYERS ACTIVITY AS WELL AS TAKING CARE ABOUT CONDUCT IN HIS PRIVATE LIFE, A LAWYER IS OBLIGED TO PROTECT RESPECT AND TO STRUGGLE FOR PROMOTION AND AFFIRMATION OF LEGAL PROFESSION AS AN INDEPENDENT PROFESSION. WHEN EXECUTING LAWYERS ACTIVITY, A LAWYER IS OBLIGED TO ACT IN HUMAN WAY, RESPECTING DIGNITY OF ALL HE CONTACTS WITH. THEN, HE IS OBLIGED TO PRESERVE HIS HONOUR, MORAL CHARACTER, INDEPENDENCE AND EXPERTNESS IN ORDER TO STIMULATE OTHERS WITH HIS CONDUCT. WHEN EXECUTING LAWYERS ACTIVITY, A LAWYER IS OBLIGED TO RESPECT TRUTH AND LEGALITY, INDEPENDENCE OF LEGAL PROFESSION IN ACCORDANCE WITH THE CONSTITUTION AND LAWS. A LAWYER IS OBLIGED TO ENERGETICALLY REJECT ALL TRIES OF INFLUENCE ON HIS INDEPENDENCE IN EXECUTION OF ACTIVITY. HE IS OBLIGED TO INFORM ORGANS OF THE BAR ASSOCIATION ABOUT THESE TRIES. EXECUTION OF ANY COMMERCIAL OPERATIONS, ASSOCIATION OF LAWYERS OFFICES WITH ACTIVITIES OF SUCH EFFECT, I.E. ACTIVITIES THAT DO NOT GIVE LEGAL AID ARE INCOMPATIBLE WITH EXECUTION OF LAWYERS ACTIVITY. OBLIGATION OF A LAWYER IS TO BE CONSTANTLY UNDER PROFESSIONAL IMPROVEMENT, TO READ PROFESSIONAL LITERATURE, PARTICIPATE IN ALL PROFESSIONAL DISCUSSIONS, CONSULTATIONS, AND CONGRESSES, IN ALL ACTIONS OF LEGAL PROFESSIONS BY WHICH IMPROVEMENT AND AFFIRMATION OF THIS SERVICE ARE ACHIEVED, AND TO IMPROVE HIS GENERAL EDUCATION. A LAWYER HAS TO HELP WITH HIS PROFESSIONAL KNOWLEDGE OTHER LAWYERS, AND HE IS ESPECIALLY OBLIGED TO HELP PROFESSIONAL TRAINING OF LAW CLERKS IN LEGAL PROFESSION. A LAWYER IS OBLIGED TO GIVE LEGAL AID TO A CLIENT FOR WHICH HE KNOWS THAT IS NOT IN POSITION TO PAY FOR SERVICE, OR A CLIENT THAT IS ASSIGNED TO HIM ACCORDING TO THE SCHEDULE DETERMINED BY AUTHORIZED ORGAN OF THE BAR ASSOCIATION, I.E. OTHER ORGANIZATION ACCORDING TO THE DECISION OF THE BAR ASSOCIATION, AND THE BAR ASSOCIATION BEARS THE COSTS. IT IS NOT APPROPRIATE THAT A LAWYER IS A PERSON THAT ACTS AGAINST INTERESTS OF LEGAL PROFESSION AND WHO DOES NOT RESPECT RULES OF THIS CODE. WHEN EXECUTING LAWYERS ACTIVITY AS WELL AS TAKING CARE ABOUT CONDUCT IN HIS PRIVATE LIFE, A LAWYER IS OBLIGED TO PROTECT RESPECT AND TO STRUGGLE FOR PROMOTION AND AFFIRMATION OF LEGAL PROFESSION AS AN INDEPENDENT PROFESSION. WHEN EXECUTING LAWYERS ACTIVITY, A LAWYER IS OBLIGED TO ACT IN HUMAN WAY, RESPECTING DIGNITY OF ALL HE CONTACTS WITH. THEN, HE IS OBLIGED TO PRESERVE HIS HONOUR, MORAL CHARACTER, INDEPENDENCE AND EXPERTNESS IN ORDER TO STIMULATE OTHERS WITH HIS CONDUCT. WHEN EXECUTING LAWYERS ACTIVITY, A LAWYER IS OBLIGED TO RESPECT TRUTH AND LEGALITY, INDEPENDENCE OF LEGAL PROFESSION IN ACCORDANCE WITH THE CONSTITUTION AND LAWS. A LAWYER IS OBLIGED TO ENERGETICALLY REJECT ALL TRIES OF INFLUENCE ON HIS INDEPENDENCE IN EXECUTION OF ACTIVITY. HE IS OBLIGED TO INFORM ORGANS OF THE BAR ASSOCIATION ABOUT THESE TRIES. EXECUTION OF ANY COMMERCIAL OPERATIONS, ASSOCIATION OFLAWYERS OFFICES WITH ACTIVITIES OF SUCH EFFECT, I.E. ACTIVITIES THAT DO NOT GIVE LEGAL AID ARE INCOMPATIBLE WITH EXECUTION OF LAWYERS ACTIVITY. OBLIGATION OF A LAWYER IS TO BE CONSTANTLY UNDER PROFESSIONAL IMPROVEMENT, TO READ PROFESSIONAL LITERATURE,PARTICIPATE IN ALL PROFESSIONAL DISCUSSIONS, CONSULTATIONS, AND CONGRESSES, IN ALL ACTIONS OF LEGAL PROFESSIONS BY WHICH IMPROVEMENT AND AFFIRMATION OF THIS SERVICE ARE ACHIEVED, AND TO IMPROVE HIS GENERAL EDUCATION. A LAWYER HAS TO HELP WITH HIS PROFESSIONAL KNOWLEDGE OTHER LAWYERS, AND HE IS ESPECIALLY OBLIGED TO HELP PROFESSIONAL TRAINING OF LAW CLERKS IN LEGAL PROFESSION. A LAWYER IS OBLIGED TO GIVE LEGAL AID TO A CLIENT FOR WHICH HE KNOWS THAT IS NOT IN POSITION TO PAY FOR SERVICE, OR A CLIENT THAT IS ASSIGNED TO HIM ACCORDING TO THE SCHEDULE DETERMINED BY AUTHORIZED ORGAN OF THE BAR ASSOCIATION, I.E. OTHER ORGANIZATION ACCORDING TO THE DECISION OF THE BAR ASSOCIATION, AND THE BAR ASSOCIATION BEARS THE COSTS. IT IS NOT APPROPRIATE THAT A LAWYER IS A PERSON THAT ACTS AGAINST INTERESTS OF LEGAL PROFESSION AND WHO DOES NOT RESPECT RULES OF THIS CODE. WHEN EXECUTING LAWYERS ACTIVITY AS WELL AS TAKING CARE ABOUT CONDUCT IN HIS PRIVATE LIFE, A LAWYER IS OBLIGED TO PROTECT RESPECT AND TO STRUGGLE FOR PROMOTION AND AFFIRMATION OF LEGAL PROFESSION AS AN INDEPENDENT PROFESSION. WHEN EXECUTING LAWYERS ACTIVITY, A LAWYER IS OBLIGED TO ACT IN HUMAN WAY, RESPECTING DIGNITY OF ALL HE CONTACTS WITH. THEN, HE IS OBLIGED TO PRESERVE HIS HONOUR, MORAL CHARACTER, INDEPENDENCE AND EXPERTNESS IN ORDER TO STIMULATE OTHERS WITH HIS CONDUCT. WHEN EXECUTING LAWYERS ACTIVITY, A LAWYER IS OBLIGED TO RESPECT TRUTH AND LEGALITY, INDEPENDENCE OF LEGAL PROFESSION IN ACCORDANCE WITH THE CONSTITUTION AND LAWS. A LAWYER IS OBLIGED TO ENERGETICALLY REJECT ALL TRIES OF INFLUENCE ON HIS INDEPENDENCE IN EXECUTION OF ACTIVITY. HE IS OBLIGED TO INFORM ORGANS OF THE BAR ASSOCIATION ABOUT THESE TRIES. EXECUTION OF ANY COMMERCIAL OPERATIONS, ASSOCIATION OF LAWYERS OFFICES WITH ACTIVITIES OF SUCH EFFECT, I.E. ACTIVITIES THAT DO NOT GIVE LEGAL AID ARE INCOMPATIBLE WITH EXECUTION OF LAWYERS ACTIVITY. OBLIGATION OF A LAWYER IS TO BE CONSTANTLY UNDER PROFESSIONAL IMPROVEMENT, TO READ PROFESSIONAL LITERATURE, PARTICIPATE IN ALL PROFESSIONAL DISCUSSIONS, CONSULTATIONS, AND CONGRESSES, IN ALL ACTIONS OF LEGAL PROFESSIONS BY WHICH IMPROVEMENT AND AFFIRMATION OF THIS SERVICE ARE ACHIEVED, AND TO IMPROVE HIS GENERAL EDUCATION. A LAWYER HAS TO HELP WITH HIS PROFESSIONAL KNOWLEDGE OTHER LAWYERS, AND HE IS ESPECIALLY OBLIGED TO HELP PROFESSIONAL TRAINING OF LAW CLERKS IN LEGAL PROFESSION. A LAWYER IS OBLIGED TO GIVE LEGAL AID TO A CLIENT FOR WHICH HE KNOWS THAT IS NOT IN POSITION TO PAY FOR SERVICE, OR A CLIENT THAT IS ASSIGNED TO HIM ACCORDING TO THE SCHEDULE DETERMINED BY AUTHORIZED ORGAN OF THE BAR ASSOCIATION, I.E. OTHER ORGANIZATION ACCORDING TO THE DECISION OF THE BAR ASSOCIATION, AND THE BAR ASSOCIATION BEARS THE COSTS. IT IS NOT APPROPRIATE THAT A LAWYER IS A PERSON THAT ACTS AGAINST INTERESTS OF LEGAL PROFESSION AND WHO DOES NOT RESPECT RULES OF THIS CODE.
Zabrana natjecanja i klauzula o zabrani natjecanja
Često se u praksi dešava da poslodavci i radnici ne razlikuju značenje i posljedice zabrane natjecanja i klauzule o zabrani natjecanja, uslijed čega se dešava da se ovi instituti nepravilno koriste u ugovorima o radu. Posljedica nepravilne primjene je da takva klauzula ne stvara dužnost radnika da se pridržava obveze zabrane natjecanja.
Zabrana natjecanja i zakonska zabrana natjecateljske aktivnosti regulirane su člankom 39. Zakona o radnim odnosima (u daljnjem tekstu: ” ZDR – 1″) koji propisuje da radnik ne smije za svoj ili tuđi račun vršiti radnje ili sklapati poslove iz djelatnosti poslodavca, koji predstavljaju ili bi mogli predstavljati natjecateljsku aktivnost, bez poslodavčeva prethodnog pisanog odobrenja. U tom slučaju, poslodavac ima pravo od radnika potraživati naknadu štete koja mu je takvom aktivnošću uzrokovana, u roku od tri mjeseca od dana kad je saznao za vršenje tih radnji ili sklapanje takvih poslova, a najkasnije u roku od tri godine od dana kada je nastupila povreda. Obzirom da je ova vrsta zabrane natjecanja propisana zakonom, nema potrebe da se ona zasebno definira u ugovoru o radu, a treba istaknuti i da ova zabrana vrijedi samo za vrijeme trajanja radnog odnosa.
S druge strane, smisao klauzule o zabrani natjecanja je potpuno drugačiji. Ista će naime biti u pisanom obliku izričito ugovorena između poslodavca i radnika, u kojem slučaju zabrana natjecanja vrijedi i nakon prestanka radnog odnosa. Odredbe ZDR-1 definiranju klauzulu o zabrani natjecanja člancima 40. do 42 , propisujući uvjete koji moraju biti ispunjeni za njezinu valjanost i za nastanak obveze između ugovornih strana:
- Klauzula o zabrani natjecanja mora biti u pisanom obliku i predviđati naknadu radniku za to ograničenje;
- Klauzula o zabrani natjecanja može za radnika predviđati zabranu natjecanja sa poslodavcem samo za određeni razumni period, odnosno najdulje dvije godine nakon prestanka ugovora o radu;
- Klauzula o zabrani natjecanja ne smije onemogućiti primjereno zapošljavanje radnika;
- Radnik na kojega se zabrana odnosi mora u radnom odnosu imati pristup određenim tehničkim, proizvodnim i poslovnim znanjima, kao i poslovnim kontaktima;
- Za važenje klauzule o zabrani natjecanja, nužno je da radni odnos prestane sporazmno, redovitim otkazom radnika, redovitim otkazom poslodavca uvjetovanim skrivljenim ponašanjem radnika ili izvanrednim otkazom poslodavca (prema ZDR – 1, izuzet je otkaz iz razloga što je radnik odbio prijenos ugovora ili stvarni rad kod poslodavca – preuzimatelja).
Dokazivanje kršenja klauzule o zabrani natjecanja može u određenim slučajevima biti iznimno teško, uzevši u obzir sve gore navedene uvjete koji moraju biti ispunjeni, kao i potrebu za postojanjem čvrstih dokaza. Je li došlo do povrede ugovorene zabrane natjecanja, prosuđuje se uzevši u obzir okolnosti pojedinog slučaja, pri čemu se smjernice mogu uglavnom naći u sudskoj praksi razvijenoj kroz godine u ovom području.
13. kolovoz 2013.g.
Elektronska vizitka
