The Judicial Problem And Countermeasure Of The Limitation Of The Competition Of Labor Contract In China

Along with our country market competition intensifying,the business interests of unit of choose and employ persons and laborer of the conflict between freedom of choosing a career,non-compete system arises at the historic moment of labor contract law in our country,in order to balance coordinate labor rights and interests of both sides of the conflict and contradiction.In recent years,there have been more and more disputes about the limitation of competition in China's labor contract,and there have been many difficulties and disputes in the judicial practice.Although the system of judicial practice for a certain differences between the use of the applicable law is inevitable phenomenon.but in the judicial practice to apply the labor contract period of a non-compete too much controversy,the differences,lead to the operation of the system deviate from the original intention of legislation,unit of choose and employ persons and laborer can't form a good system is foreseen.Therefore,it is necessary to in-depth analysis of the labor contract from the reason of the non-compete controversial judicial problem,embodied in three aspects:first,because of the labor contract fuzzy rules,the effectiveness of the non-compete agreement elements including the non-compete agreement applicable object,subject,scope,the factors on the legislation is not clear,and regional and in the absence of legislation on in-service period of a non-compete,lead to different courts in judicial disunity,the verdict is put in bigger difference;Second,economic compensation due to the labor contract period of a non-compete clause obvious deficiencies,including the status of economic compensation terms in the non-compete agreement,economic compensation standards are not clear,and economic compensation payment form is not clear,lead to different judicial trial court exists in the suitable difficulty;Third,due to the labor contract of the non-compete agreement have defects liability for breach of rules,including liquidated damages standard is not clear,penalty due to breach of contract responsibility and damage compensation relations are not clear,and the liability for breach of contract subject not clear,lead to different judicial trial court there is a difference on the applicable.At the same time,there is a lack of uniform rules of application in judicial practice,which leads to the frequent occurrence of"similar cases and different judgments" in judicial proceedings.In order to solve the judicial problem of the limitation of labor contract competition,it is necessary to perfect the legislation of labor contract competition and the rule of judicial application.First of all,it is necessary to clarify the elements of the contract of labor contract competition,including the application object,subject,scope,and definition of non-competition restrictions.Second economic compensation rules,improve the labor contract period of a non-compete including clearly have no agreement on economic compensation of non-compete agreement effective and specific set minimum economic compensation standard and the reasonable economic compensation payment forms;Finally perfect the rules of liability for breach of the labor contract period of a non-compete,including setting the highest standard of penalty due to breach of contract,clear liquidated damages punitive function and clear the new unit of choose and employ persons jointly and severally liable,and unified rules of the labor contract period of a non-compete judicial application,including the balance unit of choose and employ persons and laborer,priority to protect the interests of the employer's business interests,ensure that freelancers loss of full compensation.Through non-compete system legislation and judicial application rules,guiding the judicial practice,the labor contract period of a non-compete solve disputes and problems in dispute,balance the rights and interests of labor and capital conflict,promote the harmonious development of society.