Research On The Judicial Application Of The Non-compete Clause When Anchors Leave Their Job

With the rapid development of the Internet,the Internet penetration rate has continued increasing,and the live broadcast industry has risen with the trend.It has won a huge traffic pool with its high interactivity and breaking time and space restrictions,giving birth to "Huya","Douyu" and "One Live" and many other interactive live broadcast platforms.The rapid development of the webcasting industry has spawned many emerging professions,and anchor is one of the most popular professions.The growth of anchors is not easy.It is difficult for new anchors to get rewards.The growth of anchors inevitably require long-term investment from platforms and brokerage companies,including huge expenses such as training,planning,marketing,and promotion.The initial investment of the platform is difficult to recover immediately,but these company still hope to increase the number of fans of the anchor,thereby increasing future cash inflow.However,due to current credibility system is still not sound,unfair competition has not been well contained,anchors who become popular will be lured into quitting jobs driven by interests,resulting in damage to the interests of the original platform.The core resources of platforms are the anchors.Maintaining the relationship between the anchors and the platform is the key to the long-term development of the platform.The platform has a huge investment in the contracted anchors.If the anchors are not regulated,the anchors will switch jobs,which will cause the platform’s investment to be unrecoverable and lose its competitive advantage.Therefore,in the live broadcast industry,it has become an industry practice for platforms and anchors to sign competition restrictions.In such case,can non-compete restriction apply to these anchors? Can the platform restrict the free choice of career rights of the anchor? If applicable,what are the specific applicable rules? Therefore,this paper adopts empirical research methods,supplemented by theoretical analysis and comparative research methods.First,starting from nearly 100 judicial adjudication cases involving anchor competition restriction,the article summarizes five main problems through typical case analysis and group case analysis,and sorts out the current mainstream adjudication logic.This paper further focuses on the theoretical issue of the application of competition restriction for network anchors.On the basis of reading a large number of essays,This paper demonstrates the original intention of the legislation of competition restriction.The fundamental purpose of competition restriction is to maintain a competitive advantage,and the competition between platforms is actually the competition between anchors.An anchor is the core resource of the platform and the competitive advantage.For the live broadcast industry,the commercial importance of anchors is no less than that of business secrets.Specifically,for the anchors in labor relations,there are laws to abide and if they meet the provisions of Article 24 of the Labor Contract Law,the competition restrictions can be applied.As for the anchor in cooperative relationship,this article discusses the rationality of the application of non-compete restrictions from four legal philosophies perspectives,including balance of interests,good faith,protection of fair competition and freedom of contract.At the same time,in order to avoid the platform’s abusing the non-compete agreement,this article hold the idea that not all the cooperative relationship anchors can subject to non-compete restrictions.Two conditions need to be met,one is that the anchor’s market power constitutes a competitive advantage,and the other is that the platform’s investment in anchors reaches certain standard.After solving above theoretical problems,this paper discusses two sides of competition restriction.First of all,it analyzes the specific application of compensation.Compensation for non-compete is a necessary condition and a necessary result for the anchor who fulfill the obligation of non-compete.It is a reasonable compensation for the anchor who give up the right of freely choose a job.Drawing on the system of extraterritorial law,it clarifies the non-compete agreement is not of course invalid when they didn’t reach an agreement on the financial compensation.Considering the speciality of these anchor,the "Labor Law" and judicial interpretations can be appropriately referred to when there is no way to limit the amount,form and duration of compensation.Then,this paper discusses of the application of non-compete liquidated damages.Due to the imperfection of non-compete rules and the disparate negotiating position between the platform and the anchors,sky-high liquidated damages are very common in practice which should not be supported by the court.The paper sorts out several factors which influencing the reduction of liquidated damages.At the same time,it is pointed out that the court should determine whether the anchor still needs to perform the non-compete obligation after paying the liquidated damages based on the legal relationship between the anchor and the platform.As the competition becomes more and more intense,the competition is more of a competition for high-quality talents,and the live broadcast industry is a typical representative.Regardless of the legal relationship between the anchor and the platform,we must recognize that the non-compete system can not only maintain competitive advantages,protect the business secrets of enterprises,but also prohibit improper restrictions on career selection.So we are supposed to balance the interests between the enterprises and the anchors as much as possible in dealing with the issue of anchor competition restrictions.At present,because the development of new things has not yet reached a certain stage,there are still gaps in our country’s laws based on the consideration of stability.However,clarifying the specific applicable rules of anchor competition restrictions and using legal hermeneutics to explain the specific application of competition restrictions have a very deep meaning to protect the legitimate rights and interests of network anchors and to promote the development of the broadcast industry.