1.Labor and fact labor relation confirm.
Because the labourer knows perfectly well that he signed the prohibition agreement in competitive industry with original employing unit, so the labourer often takes the prudent attitude while reemploying. Even if labourer engaged in prohibitive behavior of competing etc. leave office, take, conceal generally or half conceal way go on. Former employing unit offer labourer with new employing unit establish, work evidence of relation while being difficult. Especially if the new employing unit knows perfectly well a labourer has competing industries to forbid the agreement to sign, the new employing unit may adopt some methods in violation of rules and regulations, if does not sign the labour contract, do not pay three gold,etc.. Lie between such objective situation, the court confirms whether a labourer establishes the relation of working with the new employing unit, on one hand should agree on the content and confirm whether a labourer breaks a contract according to the contract strictly, on the other hand should share the burden of proof rationally after the former employing unit has offered certain evidence. For instance, plaintiff Garbo decorations Co., Ltd. of Shanghai good fortune who two intermediate courts in Shanghai try tells the defendant discusses the country in the illegitimate competition dispute case of China, defendant Shanghai China great optical products Co., Ltd., plaintiff offer, discuss country China go abroad going abroad registration form to join commercial activity as China great company designer, fail, offer, discuss country China and new labour contract of employing unit, pay three gold evidences, in a situation that the defendant failed to explain rationally, the court confirms that China has violated the agreement that the competing industry forbids to discuss the country.
Though labour law and relevant work arbitrate and has not regarded it as the acceptance range of arbitration to forbid the dispute in the competing industry and worked in the regulations clearly, but because person who compete forbid, it agrees on to be can as to can prepare against clause agree on among labour contract labour contract, person who compete forbid dispute apply case arbitrated to work already take place 〖Explanatory note 5 〗. I thought, if the former employing unit was simple in term of forbidding the clause or agreement in the competing industry, require the new employing unit to stop employing the labourer or requiring what the labourer paid the penalty, should deal with the dispute of working. However, if the former employing unit sues the new employing unit or labourer's illegitimate competition on the grounds of violating the competing industry to forbid, infringe unit one formerly belonged to manage secret with technology secret, violate competing industry forbid already becoming and infringing others' right means at this moment especially, should try as the illegitimate competition case. But because person who compete forbid case involve work or fact work to assert relation often, and fact this assert professional lines to be relatively strong, so I propose the case try, can consider, invite, have labour dispute judge to hear experience join the collegiate bench across front yard, ensure the case to be prompt, accurate and trying justly. 2. Compensation Confirm.
In practice, should pay attention to two kinds of situations: (1) there is higher compensation on name, labourers are not compensated actually. Exchange advisory service Co., Ltd. and sue defendant Wang JianFeng such as plaintiff Shanghai that Shanghai Beijing No.2 Intermediate People's Count tries, Song KeLin and at Haifa good fortune Trade Co., Ltd,etc. illegitimate competition dispute case, do plaintiff and secret agreement that is signed in Wang JianFeng, Song KeLin's working course agree on? quot; The staff are in three years after expiring, cancelling or stopping in contract, any operational activity that can't be engaged in competing with enterprise's business. Enterprises are 20%, as the secret fund in the fixed remuneration that is released to the staff per month. But Wang sword peak sign with Song KeLin agreement fixed remuneration that receive actually 1500 and 3500 respectively in fact. The plaintiff signs surface of this agreement to give Wang JianFeng, Song KeLin's corresponding compensation, but Wang JianFeng and Song KeLin have not been really compensated from the signing of this agreement. So, the court asserts, this behavior evades the juristic act, the party signs the competing industry and forbids the agreement to be invalid. Views do not think the real revenue of the labourer has increased, can be regarded as the adjustment of labourer's salary of employing unit, that is to say, labourer's salary is reduced, has increased the compensation. I think, reducing labourer's salary should show clearly, otherwise, in a situation that there are no other rational foundations, have infringed a labourer Legitimate interests. (2) Compensation insufficiently. By the look of case which the court accepts at present, most employing units, through releasing certain number or proportion and forbidding the compensation in every monthly salary as the competing industry. It is abundant that this kind of means of payment involves the compensation that a labourer received actually. Some labourer in sign competing industry forbid the agreement to leave the unit one formerly belonged to soon, in fact the compensation received is very few or there is little number. I thought, it was reasonable to the price whether it is very difficult to judge from means of payment only to have, key want, compensate from labourer personal people whom unit obtain really volume judge totally. If the court concludes there is too little compensation volume that a labourer receives, should assert the agreement or clause of competing industry is invalid.
If the labourer compensates incompletely during the tenure of office, employing unit can at one time add extra compensation when the labourer leaves the unit. If the compensation that should be added extra adds the number paid originally to reach reasonably to the price, should assert the competing industry forbids the agreement to be effective. 3.Responsibility of the new employing unit.
In the competing industry forbids the dispute case, the responsibility of the new employing unit distinguishes three kinds of situations: (1) labourer only violates the competing industry and forbids agreeing on, if the new employing unit does not know the labourer signs with unit one formerly belonged to and has competing industries to forbid the agreement, because there is no fault in the new employing unit should not undertake to forbid responsibility in the competing industry. Meanwhile, usually the theory according to the contract, the contract can only restrain the other side of looks of the contract. Third party in participate in contract make situation, require third party bear contract responsibility have no basis. Even if former employing unit and labourer have agreed on the responsibility of the new employing unit in the agreement of forbidding of competing industry, also can't restrain the new employing unit. (2) labourer only violates the competing industry and forbids agreeing on, if new employing unit should know or know perfectly well labourer and former employing unit sign and have competing industries to forbid the agreement but still establish relation of working with the labourer, the new employing unit should bear the joint liability about forbidding in the competing industry. If the employing unit that especially seduces others into breaking a contract on purpose is totally non- responsible, really unfavorable to standardizing the labour and employment system too, is unfavorable to the market order of setting up health. At present, domestic enterprise recruitment system at developing stage, how utilize leverage that administration of justice try lead enterprise to be normal, legal recruitment subject studied to worth. The relativity theory of the contract has special case too. It is single to choose the right person One seduces others into violating the competing industry and forbidding the agreement, basically possess breaking a contract and characteristic shut of infringing and competing, moreover, the employing unit has certain fault in damaging the formulation of the result, so, it is fair and reasonable to require him to bear corresponding joint liability. But it is further clear to wait to legislate to this question. (3) Because labourer violates the competing industry and forbids agreeing to infringe the situation of former business secret of employing unit. No matter the new employing unit of this kind of situation knows the labourer has violated the competing industry with the unit one formerly belonged to and forbidden agreeing on, commit and infringe, violate the competing industry and forbid becoming and infringe the essential procedure or means, so, new employing unit and labourer should bear the liability for tort including that the competing industry forbids responsibility relatedly.
4.Examination of the penalty. In principle, the competing industry forbids the number of the penalty to respect the party's party autonomy. Once the labourer forms the competing industry and forbids breaking a contract, the labourer should be restrained by the contract, bear the corresponding liability for breach of contract. But if the number of the liquidated damages is obviously unreasonable, and make the labourer's life influenced seriously, the court can adjudicate and adjust, i.e. reduce the number that a labourer should take appropriately according to the fair principle, but this is only a few special cases.
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