Application Of The Law Of The Non-compete Restriction

In recent years,along with the generalization of the subject of non-compete obligations,non-compete disputes have also emerged one after another,and most of the disputes in cases focus on the objects of restrictions,the scope of restrictions,the limitation period and economic compensation.In particular,due to the principles and limitations of relevant laws and regulations,there is no unified determination standard for determining the eligibility of non-compete objects.Due to the limitations of their own forms of expression,legal norms themselves have certain limitations and lags,which requires that the process of application of law is a process of legal interpretation."Not violating the mandatory provisions of laws and administrative regulations" is the premise of the legality of the agreement,whether the provisions on non-compete restrictions in the Employment Contract Law are all mandatory provisions,and how to understand the provisions of non-compete restrictions on the objects of restriction,the scope of restrictions,the limitation period and economic compensation,has an important impact on clarifying the adjudication standards for non-compete disputes.The validity of a non-compete agreement is a prerequisite for the establishment of a non-compete relationship between the employer and the employee,and the agreement should meet the three requirements of subject qualification,autonomy of intention and legality of content.The eligibility of the restricted object is a prerequisite for the validity of the agreement,and the most controversial issue in the process of determining whether the restricted object complies with the law is whether the employee is a "person with confidentiality obligations".A non-compete agreement is an integral part of the labor contract,which occurs between the employer and the employee,and cannot simply transfer the logic of the determination of the subject of the agreement under civil law."Existence of protectable interests" and "access or mastery" are the core connotations of "personnel with confidentiality obligations",and only by meeting these two criteria can relevant workers be included in the scope of non-compete agreements and avoid the generalization of the objects of restrictions.The element of autonomy is often analyzed through the examination of formal elements.The content is legal,that is,the content of the agreement does not violate the mandatory provisions of laws and administrative regulations,and is in line with the legislative purpose of the labor law.Specifically,the content of the non-compete agreement is legally embodied in the following three aspects: First,the legality of the limitation scope agreement,which is similar to the restriction scope agreement between the parties that "competes with the original employer and its affiliates",does not seem to violate the mandatory provisions of the law at first glance,but it is unreasonable in nature and does not meet the purpose of the legislator in establishing the non-compete system."Extending to affiliated companies" is a consideration for the development of enterprise grouping,but this agreement is too broad and ambiguous,and the connotation of "competition relationship" is not clear,which causes excessive restrictions on workers’ right to choose their right to choose employment,and makes the restriction of their right to choose a job become unemployable,which is not in line with the normative intent of relevant laws and regulations.The restriction period is a mandatory clause in a noncompete agreement.The second is the legality of the limitation period agreement.The limitation period is necessary for employers,employees and the public interest.A negative evaluation of the behavior of not agreeing on a limitation period is conducive to standardizing the relevant behaviors stipulated in the agreement and preventing employers from taking advantage of their own advantageous position to excessively restrict employees’ right to choose a free job;The court shall,on the basis of balancing the interests of all parties,comprehensively consider the nature of the protected commercial interest,and determine the length of the limitation period as appropriate on the basis of the time during which the commercial interest can maintain its competitive advantage and the extent to which the worker has mastered the commercial interest.Finally,there is the legality of the economic compensation agreement.Economic compensation is a necessary clause of the non-compete agreement,failure to stipulate economic compensation will lead to the non-compete agreement not having legal effect,economic compensation is the consideration for the employee’s free choice of employment,the absence of economic compensation will lead to the lack of legitimacy of the non-compete agreement,and the agreement should not be effective;The current law does not stipulate the applicable standards for economic compensation,and when the amount of economic compensation agreed upon by the parties is too low,it should be applied by reference to the standards for the situation where economic compensation has not been agreed upon,so as to protect the legitimate rights and interests of employees;The payment of economic compensation during employment is easy to be confused with the employee’s wage rights and interests,and the employer is in a strong position in the labor relationship,the autonomy of the employee is limited to a certain extent due to various considerations during the period of employment,and the payment of economic compensation during the period of employment is easy to make the economic compensation not actually in place,infringing on the legitimate rights and interests of the employee.The handling of non-compete disputes is a systematic and complex process,and the concept of balancing interests should always be implemented at each adjudication node and the application of non-compete rules should be unified.