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.
Konkurenčna prepoved in konkurenčna klavzula
V praksi se večkrat dogaja, da delodajalci ali tudi delavci ne ločujejo med pomenom in posledicami konkurenčne prepovedi ter konkurenčne klavzule. Tako se dogaja tudi, da sta v pogodbah o zaposlitvi instituta napačno uporabljena, posledica pa je, da zato ne nastane zaveza na strani delavca, vsaj kar se konkurenčne klavzule tiče.
Zakon o delovnih razmerjih (v nadaljevanju: ZDR-1) konkurenčno prepoved oziroma zakonsko prepoved konkurenčne dejavnosti ureja v 39. členu, kjer določa, da delavec ne sme brez pisnega soglasja za svoj ali tuj račun opravljati del ali sklepati poslov, ki sodijo v dejavnost, ki jo dejansko opravlja delodajalec, in pomenijo ali bi lahko pomenili za delodajalca konkurenco. S tem v zvezi je zato določena pravica delodajalca, da s strani delavca zahteva povračilo škode, ki mu je nastala zaradi delavčevega ravnanja, in sicer v roku treh mesecev od dneva, ko je zvedel za opravljanje dela ali sklenitev posla, oziroma najkasneje v roku treh let od dokončanja dela ali sklenitve posla. Ker gre torej za zakonsko prepoved konkurenčne dejavnosti, je s pogodbo o zaposlitvi ni potrebno posebej določati, prav tako pa je potrebno izpostaviti, da velja zgolj v času sklenjenega delovnega razmerja.
Na drugi strani je pomen konkurenčne klavzule povsem drugačen. Za slednjo se morata namreč delodajalec in delavec posebej dogovoriti v pisni obliki, velja pa za čas po prenehanju delovnega razmerja. Če strnemo določila ZDR-1, ki konkurenčno klavzulo opredeljuje v 40. do 42. členu, morajo biti za njeno veljavnost ter nastanek obveze na strani obeh pogodbenih strank izpolnjeni sledeči pogoji:
1. konkurenčna klavzula mora biti dogovorjena v pisni obliki, prav tako pa mora biti določeno nadomestilo za njeno spoštovanje;
2. konkurenčna klavzula mora biti določena z razumnimi časovnimi omejitvami prepovedi konkuriranja, in sicer najdlje za dve leti po prenehanju pogodbe o zaposlitvi;
3. konkurenčna klavzula ne sme izključiti možnosti primerne zaposlitve delavca;
4. delavec mora pri svojem delu pridobivati določena tehnična, proizvodna ali poslovna znanja in poslovne zveze;
5. delovno razmerje pa mora prenehati s sporazumom med strankama, zaradi redne odpovedi s strani delavca, redne odpovedi delavcu z krivdnega razloga ali zaradi izredne odpovedi delavcu s strani delodajalca, (ZDR-1 izvzema razlog, če delavec odkloni prehod in dejansko opravljanje dela pri delodajalcu prevzemniku).
Dokazovanje kršitve konkurenčne klavzule je lahko v določenih primerih zelo težavno, izpolnjeni morajo biti vsi navedeni pogoji, obstajati pa morajo tudi konkretni dokazi. Ali je do kršitve konkurenčne klavzule dejansko prišlo, se presoja glede na okoliščine konkretnega primera, napotke pa gre iskati predvsem v sodni praksi, ki se je razvila skozi leta na tem področju.
