Several problems in the practice review of non-competition
1. Evidence to prove that the worker has violated the competition restriction
(1) Evidence such as salary, social security and personal income tax is more direct, but in fact such evidence is difficult to obtain. At the arbitration or litigation stage, the arbitration body can be requested to collect, but the company must first obtain preliminary evidence to enter the arbitration/litigation procedure.
(2) Open channels. Such as fully open channels, such as news, business information, company websites, etc.; Or not fully open path, such as company brochures, circle of friends, business cards and other information.
(3) Take the initiative to investigate. Proactive investigations need to look for violations of employee privacy and personal information.
2. Identification of the competitive relationship between old and new units
(1) Business scope of industrial and commercial registration.
Because the scope of business registration is relatively extensive in practice, the scope of business can often be used as auxiliary evidence. The party responsible for proof needs to further explain the competitive relationship between the two companies.
(2) The actual position and work content of the laborer.
The content of competition restriction is mainly that employees can not compete between two enterprises that have a competitive relationship, but it does not target specific positions. Therefore, although an employee is engaged in a non-competitive position in two competing companies, from the perspective of the competitive position of the enterprise, it is inclined to believe that the employee still constitutes a breach of contract.
3. Competitive behavior of relatives
From the principle of relativity of contract, the contract does not bind the relatives of employees. In practice, it is generally judged whether employees participate in actual management through their relatives.
4. Employees violate reporting obligations
If an employee merely violates the reporting obligation, it is difficult to identify the employee as in breach of contract, but it may be identified as one of the manifestations of breach of contract, which may be taken into consideration when determining liquidated damages.
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