A Study On Judicial Application Of Liquidated Damages For Restricted Competition

In order to balance the interests of labor and capital,the agreed competition restriction uses liquidated damages and economic compensation to reconcile contradictions and maintain social order.The Draft Labor Contract Law of the People’s Republic of China has set the upper limit of liquidated damages and the lower limit of economic compensation,but the formal law has not clearly stipulated the reference standard of the amount of liquidated damages and economic compensation as well as the effective elements of the contract,and relaxed the restrictions on the freedom of contract,which has laid a hidden danger for the judicial application of liquidated damages.After analyzing the cases of judicial application of liquidated damages for agreed non competition,we can find that its judicial application has gradually deviated from the right track,mainly in the following aspects: first,there are differences in the impact of employers’ failure to perform their obligations according to law on their claims for liquidated damages,which can be divided into three views: The first view is that if the employer fails to perform its obligations according to law,the employee does not need to pay liquidated damages;the second view is that the employer’s failure to perform its obligations according to law does not affect its claim for liquidated damages;the third view is that the employer’s failure to perform its obligations according to law can be included in the basis for the reduction of liquidated damages.Even the opinions of the court of first instance and the court of second instance in the same case are different,and different courts use different opinions to make judgments,which can not guarantee the fairness of the case results.The second is that the role of actual loss proof is not unified in the case judgment,which can also be divided into three views.The first view is that the employer claims that the penalty is based on the proof of actual loss;the second view is that the employer claims that the penalty is not based on the proof of actual loss;the third view is that the proof of actual loss can not be used as the basis of judicial discretion.The reasons for the adoption of various views are a little repetitive,which leads to the conflict of the above views.Third,the application of judicial discretion is disorderly,which is mainly reflected in the fact that the determination standard of excessive liquidated damages varies from court to court and the discretion reduction range varies from court to court.By comparing the third point of view of the above two issues,we can find that judicial discretion seems to be a "universal bag",and any act can be used as a reason for judicial discretion.In the analysis of the above problems,we can find that the differences of judicial views are closely related to the nature of the liquidated damages and the subordinate status of workers.The effect of judicial application of liquidated damages for non competition contract affects the realization of its legal value.If we want the liquidated damages to play a full role in China’s labor relations,we must "suit the remedy to the case".First of all,based on the status of economic compensation in labor relations,the employer’s performance of obligations in accordance with the law is linked with the effectiveness of the non competition contract,so as to implement the non competition penalty and balance the value of the rights and interests of the parties.Secondly,according to the dual attributes of the liquidated damages,the ownership of the burden of proof of actual loss is determined to reduce the burden of proof of the observant party.Finally,referring to the "Civil Code of the People’s Republic of China" and other legal documents,integrating the particularity of labor contract,according to the concept of appropriate intervention of public power,reasonable application of judicial discretion,in order to fully realize the legal value of the agreed non competition penalty.