The Study Of Judicial Application Of Non-competition

In 2008,the non-competition system was formally established in the Labor Contract Law.In 2013,the Supreme People’s Court promulgated the Interpretation on IV.The judicial interpretation has a total of 15 articles,five of which are related to the non-competition issue.However,the number of cases of competition restriction increases year by year,and the legislation is too principled and avoids many problems.For example,the subject,object,region,occupation scope of competition restriction and the problem of economic compensation and liquidated damages.Therefore,labor arbitrators and judges have too much discretion in judicial practice,resulting in different judgements in the same case.The purpose of this paper is to analyze the above problems,and finally give suggestions on judicial application,so as to provide reference for judicial practice.This paper is divided into three parts:Firstly,the present judicial situation is introduced,research methods and so on,to provide the basic conditions for the study of this paper.Then,by sorting out the cases of competition restriction disputes between 2016 and 2020,this paper first analyzes the general situation of competition restriction disputes in the recent five years,and then extracts the core dispute focus of these cases,which is also the place where the court causes different judgments in the same case in the judicial application process.The author divides the core dispute focus into two levels,one is agreement,the other is the liability of the non-competition dispute.The second part is to analyze the problem of identification and liability of competition restriction.In the process of judicial application of the determination of the issue,the court usually has disputes in the determination of the scope,region,limitation period and other aspects of the subject and object of the agreement.On the judicial application of liability,this paper analyzes the causes of disputes from the perspective of economic compensation paid by the employer or liquidated damages borne by the worker.The third part is to give the final suggestion to improve the judicial application of the problem of identification and liability.The subject of the competition restriction should be determined according to the position and status of the laborer,the possibility of contacting with the trade secret and the possibility of using the information.The object of the competition restriction can be defined,mainly considering the scope of the employer’s trade secrets and other matters that can bring business benefits.Scope,region and time limit should also be considered according to the specific industry and actual business of the employing unit.Economic compensatory compensation should consider from 4 respects,it is to do not agree compensatory compensation,agreed compensatory compensation is too low,did not pay compensatory compensation by the agreement,agreed compensatory compensation has been in the salary to extend.The liquidated damages are also considered from four aspects,namely the amount of economic compensation,the subjective factors of the laborer and the behavior of breach of contract,the working income of the laborer and the fault degree of the employer.