A Research On The Compensation For The Non-competition Clause In China

As an effective means for enterprises to maintain their own management rights,competition restriction has gradually become an important system in the field of labor law in my country after more than 20 years of development.Trade secrets play an important role in the participation of units in commercial activities.The non-competition clauses are derived from the prevention of their leakage risk,and it is the prior protection of the employer’s right to operate.After the clauses take effect,employees will assume the obligation to restrict competition and cannot be employed or self-employed in similar competitive industries.Since the employees who signed the competition restriction,after leaving the original unit,fulfill the non-competition agreement and cannot engage in the work they are familiar with,this may lead to a reduction in economic income and a decline in living standards.At this time,the company should give employees a certain amount of compensation.Nevertheless,because of the lack of certainty and uniqueness in the current laws of our country regarding the non-competition system,the academic circles and various local judicial organs have deviations in the determination of the effectiveness of the compensation.Based on the determination of the effectiveness,the compensation payment form,period and standard,and clauses are cancelled.Different judging standards have emerged on issues such as rights.The author takes the specific provisions of the compensation system in the restriction of competition as a research perspective,and puts forward reasonable suggestions for resolving the conflicts of interest of all parties.First of all,the improvement of the non-competition system requires an overall review of the legislative overview and the current status of the non-competition compensation system,and analyzes how the compensation system realizes the equal rights and obligations of both parties in the labor relationship.It is pointed out that the application of the system still needs Consider the balance of interests among the workers,employers,and society.By exploring the legislative spirit and legislative purpose behind the system,it is clarified that the protection of legal interests also has a value hierarchy.When value protection conflicts,it should conform to the spirit of legislation that has been consistent when the labor contract law was formulated,that is,the basic rights of survival,labor rights,etc.And social public interests can be given priority.Secondly,combined with real cases in judicial practice to consider my country’s non-competition compensation system,and pointed out the disputes arising in my country’s judicial practice and the existing problems in current laws,regulations and judicial interpretations: unclear validity of non-competition clauses and compensation,the payment form is single,the payment standard is not perfect,the payment period is unreasonable,and the laborer’s unilateral right to cancel is lacking.It also sorts out the controversial focus of the above-mentioned issues,displays the viewpoints of various academic and practical circles,and demonstrates and analyzes its pros and cons.Finally,based on the above-mentioned issues as the starting point,the relevant regulations and court judgments of other overseas countries(regions)are investigated,and based on comprehensive reference to various viewpoints,the theoretical evidence is based on my country’s national conditions,and the disputes on the practice are discussed one by one.Analyze the feasibility,try to hypothesize and verify carefully,and give reasonable and perfect suggestions for the deficiencies of the non-competition compensation system: first,clarify the validity of the non-competition clause,stipulate that there is no agreed compensation and the compensation paid during the tenure The business restriction clause is invalid.The second is to improve the diversified forms of compensation payment,and add other forms of compensation besides monetary payment.The third is to improve the compensation payment standard,clarify the calculation basis of the compensation,formulate a double payment standard,and adjust the amount when the compensation is too low or the gap with the liquidated damages is too large.The fourth is to adjust the provisions of the compensation payment period to allow payment periods other than monthly payments.The fifth is to add the right of cancellation in the case of unpaid compensation.