On The Generalization Of Subjects In Non-Compete Agreements In China

With the continuous development of China’s economy,the competition between enterprises is also increasing day by day,therefore,as an imported legal system aimed at maintaining the commercial secrets of the employer and effectively protecting its legitimate rights and interests-non-compete system,gradually become an emerging legal system.However,many employers,while using the non-compete system to protect themselves,attempted to abuse the non-compete agreement in the name of protecting trade secrets in order to retain talent,leading to the frequent occurrence of various "chaos" in the signing of non-compete agreements in today’s labour market,threatening the workers’ right to free choice of employment and the right to live.The first part of this paper analyses 57 adjudication documents screened by the author to summarise the non-competition disputes in China in the past year.It can be seen that most courts adopt a formal review to examine the validity of non-competition agreements,so as to presume whether the workers are qualified to perform the subject of the non-competition agreement.The second part discusses the problems of China’s non-competition system,the third part reviews many overseas experiences,and the fourth part improves the legislative provisions of China’s non-competition system by drawing on foreign legislation and judicial practice,such as those of the United Kingdom,the United States and Germany,and then taking into account the domestic situation,to clarify that the burden of proving the suitability of the subject of the non-competition should be borne by the employer,and that in judicial practice,substantive review is used instead of In the judicial practice,the review of the substance of the non-competition agreement should replace the review of the form,and the applicable subjects in the non-competition agreement should be restricted.