Judicial Determination Of Employees' Breach Of Contract In The Non-competition

Talents are the first resource of market competition.The flow of talents involves the business secrets of enterprises and the free choice of individuals.Therefore,the non-competition requires a balance of interests among individuals,enterprises and society.While the number of cases of non-competition disputes has risen under the development of market economy and the problems caused by the violation of the non-competition clauses by workers are particularly prominent.Through statistical analysis of 100 refereeing documents of non-competition cases that limit employees' breach of contract disputes,the current trial dilemma reflects the following problems.First,regarding the validity of the non-competition agreement,there is a bias in the validity of the agreement that has not agreed or failed to pay economic compensation.In the judicial practice,there are three effective forms: the agreement is valid;the agreement is not binding;the agreement is invalid.Second,concerning the issue of breach,with a one-sided judgment on the competition between the new employer and the original unit.The main referee determines the competitive relationship based on the business registration of business scope so that it ignores the real business and geographical scope.Third,concerning the issue of liability for breach of contract,there are differences in the application and discretion of the form of liability for breach of contract.Lacking of a concrete consideration of the adjustment of liquidated damages increases the uncertainty of the amount of the damages,and returns the economic compensation or compensation for losses to the workers and the inconsistency of the referee in the claims of joint and several liability.Focusing on the difficult issues in the trial of the case,the reasons for the trial dilemma are analyzed from the legislative and judicial levels.At the legislative level,there is a lack of operability in the normative documents for non-competition.For example,different regions have different guidance on the effectiveness of the agreement on the lack of economic compensation,which directly affects the trial.The statutory scope of the non-competition is not clear,especially the geographical scope and industry scope lack strict and specific restrictions;the legally required non-compliance of non-compete liability limits,and the lack of guidelines for refereeing rules,can not meet the needs of trials.At the judicial level,the subjectivity of the referee restricts the choice of the referee path such as the adherence to the competition restriction agreement and the lack of reasonable review of the non-competition;in the conflict of rights between the free choice of business and the trade secret rights,the referee body is inclined to reach a disagreement;the logical faults that exist in the cases of non-compliance disputes;the exercise of discretion leads to discretionary errors.Non-competition is a coordination mechanism.Based on the principle of balance of interests and the principle of reasonable restriction,it aims to coordinate the conflicts of rights between employees,employers and the society.It emphasizes that non-competition should have the benefits that must be protected by law and fall within the reasonable limits.The referee of the case of non-competition disputes shall follow the principle of coordination.First,distinguish the three stages of contracting,performance,and breach of contract,and provide differential protection for the interests of different stages.Second,the agreement that does not stipulate economic compensation or the agreement does not meet the statutory standards is invalid and the agreement is terminated if the economic compensation is not paid.Third,the substantive criteria are used to judge the competition between employers,including the scope of industry and region.Fourth,provide reference factors for adjusting liquidated damages,clarify the basis and scope of compensation,and standardize the application of other forms of liability for breach of contract.