The Perfection Of China's Non-compete Compensation Payment Time Rules

Human resources and trade secrets,as one of the core competitiveness of enterprises,can bring huge benefits to employers,but it is difficult to avoid the risk of leakage of trade secrets and damage to competitive interests caused by the departure of laborers.As a result,the competition restriction system with the main purpose of protecting trade secrets came into being.The corresponding compensation limit for non-competition is pre-agreed by the employer based on the purpose of protecting its own competitive interests.It is the economic compensation for the payment of money to the laborer,and it is also the life guarantee for restricting laborers.However,at present,China's laws and regulations are still lacking in the provisions on the period of payment of compensation for resignation and competition.For example,Article 23 of the Labor Contract Law of the People's Republic of China does not make a clear statement on the period of payment of compensation for resignation and compensation.As a result,there has been a discrepancy between the parties regarding the concept and the understanding of the law,and related labor dispute cases have come to the fore.This state is not conducive to the fulfillment of competition restrictions and the stability of the market order.In the 2011 Labor Contract Law(Draft for Comment),the legislator tried to clarify the rules for the period of compensation for non-competition compensation.It mandated that the compensation for separation of employment should be terminated or terminated.After the issuance,it is regrettable that the subsequent formal promulgation of the law does not impose mandatory provisions during the payment of the compensation.Such ambiguous legislation to a certain extent causes the employer to ignore the rights and interests of the workers,not paying or paying less compensation for competition restrictions,but requiring the workers to fulfill their non-competition restrictions.Due to the physical attachment of the employer to the employer,the laborer often accepts the unreasonable and unfair non-competitive compensation limit payment clause when entering into the labor relationship,resulting in obvious unequal rights and obligations between the employer and the employee.Therefore,in the legislation,the rules for clearing the compensation for resignation from the competition limit are in line with the value objective of the Labor Contract Law to protect the rights and interests of laborers.Since Article 23 of the Labor Contract Law does not provide a clear explanation of the period of compensation for compensation for competition,the parties have different understandings of the concepts and the law,and the rules for the payment of compensation during the period of compensation are needed.Two aspects to explore the solution of the problem: the first measure is to determine the compensation for the resignation limit in the legally clear way.The compensation should be paid within a period of time after the employee leaves the company,that is,it cannot be paid in advance during the employment period.This is based on the competition restriction.The compensation has the nature and functional considerations to compensate the workers' freedom of choice in employment and to protect their post-employment life;the second measure is to adjust and determine the compensation for compensation for non-competition during the period of employment.The key is to clearly distinguish between the workers during their employment.The compensation for non-competition restrictions issued shall include the “Competition Limit Compensation for Employment Period” and the “Competition Limit Compensation for the Period of Separation”,and shall be determined according to the newly revised Articles.Limiting compensation is effective,which is based on the fact that the two parties The decision of the degree of autonomous choice is determined;it is considered that the compensation for the termination of employment during the period of employment is invalid,and the situation of “not stipulated economic compensation” is the same as the “Several Judicial Interpretation of the Supreme People's Court on the Applicable Law for the Trial of Labor Dispute Cases”(Article 4)The completion of the connection process is specified.