A Study On The Trial Dilemma And Solution Of Non-compete Dispute

Articles 23 and 24 of the Labor Contract Law of the People’s Republic of China(hereinafter referred to as the "Labor Contract Law")provide for a non-compete system in China,which aims to prevent workers from infringing on the trade secrets of the original employer after leaving the company,and the system also restricts workers’ right to freedom of occupation.With the continuous promotion of the process of rule of law,the idea of rule of law has been deeply rooted in people’s minds,more and more employers are entering into non-compete covenants with workers to protect trade secrets.Since the non-compete system started late in China,the relevant legal system is not sound,there are still many controversies on the theory of non-compete,and there are also some shortcomings and defects in judicial practice.Some of the trial dilemmas in non-compete disputes have become urgent issues to be resolved.This paper is based on the judicial trial practice and uses the method of empirical analysis to study the adjudication documents of non-compete disputes.By analyzing the adjudication documents of non-compete disputes,we can find the following problems in judicial practice,Firstly,there is no uniform standard for judging the reasonableness of non-compete covenants,secondly,the scope of the subject of non-compete obligations needs to be further defined,and thirdly,the discretionary standard of liquidated damages is yet to be clarified.This article provides an analysis of the problems that exist in judicial trials of non-compete: first of all,in practice,the employers tend to abuse the non-compete covenants in order to better protect the trade secrets.If a worker is considered to have voluntarily relinquished his or her labor rights based solely on the principle of freedom of contract,ignoring the unfair status of employers and workers,the employers will be indulged to make unreasonable terms,thus harming the interests of the workers.Secondly,this paper summarizes the characteristics of the subjects of non-compete obligations and proposes that the subjects of non-compete obligations should have the characteristics of holding the core business secrets of the enterprise,high salary and long period of employment.Finally,this paper suggests a discretionary reduction standard for non-compete liquidated damages.According to the principle of tendency protection of labor law,In order to fully protect the rights and interests of workers,non-compete liquidated damages should not be punitive in nature.In terms of reference standards for judicial discretion,It should be based on the protection of workers’ right to survival,combining the factors such as the worker’s ability to perform,the employer’s actual loss and the worker’s subjective evilness,and make full use of discretionary power to adjust the non-compete breach of contract for workers on a case-by-case basis.This paper proposes an innovative solution to the dilemma of adjudicating non-compete disputes from the perspective of judicial practice and relevant theoretical views of academia.It is hoped that this paper will be useful in solving the problems existing in the adjudication of non-compete disputes and promoting the further improvement of the non-compete system in China.