In November 21, 2009 18321864965 13:20, my mobile phone rang, is a strange number 1371622****, a claim to work in Beijing generation name the girl said: I got your mobile phone number from the blog, hereby calls Advisory: I do general sales assistant in a foreign trade company, recently resigned over work unit to sign "confidentiality agreement" with me, keep my resignation shall not individually or with others in the joint venture with the same products and services, also do not have these units to employment, or to pay for breach of contract, limitation period is two years. If you do not sign the agreement on the docked me ten thousand multivariate salary. I should be how to deal with this matter?

   Answer: first, "labor contract law" twenty-third stipulates: "the unit and the laborer may agree in labor contract conservative trade secrets of the employer and intellectual property related matters. The worker has the confidentiality obligation, the employing unit may agree with the employee on the competition restriction provisions in the labor contract or confidentiality agreement, and agreed in dissolution or termination of labor contracts, during the term of the competition restriction monthly compensation. If the employee breaches the competition restriction provisions, he shall pay liquidated damages to the employer in accordance with the contract." twenty-fourth stipulates: "the competition shall be limited to the senior management personnel of the employing unit, senior technicians and other is aware of the commercial secrets of the employing unit. The scope of prohibition of business strife, regional, the period stipulated by the employer and the worker, the competition restriction agreement shall not violate the provisions of laws, rules and regulations. The dissolution or termination of the labor contract, the provisions of the preceding paragraph personnel to the limit and the units of production or business operation of similar products, service with competitive relationship with other employers, or to start his own business there is competition between the production or operation and the units of similar products, service period shall not exceed two years." The legal basis for this is your consulting problems.

   Second, from the above legal provisions, one is the law allows the unit and the laborer shall keep the commercial secrets of the employing entity and intellectual property related matters, the employer to do so in accordance with the law; two are workers and confidential agreement the competition restriction provisions of the employing unit; three is generally agreed restrictions, must be agreed in dissolution or termination of labor contracts, during the term of the competition restriction monthly economic compensation to the laborer, as for how much compensation the law does not clearly defined, since there is no clear provisions, should be consultation between the two sides to reach an agreement; four is the employee breaches the competition restriction provisions, he shall pay liquidated damages to the employer in accordance with the contract, this is mandatory; the five is the specific amount of the liquidated damages, the law does not specify; six is the main limitation of competition, senior management personnel, limited to the employer's senior technicians and other personnel with such units of commercial secrets; seven is the prohibition of business strife range, area, time limit stipulated by the employer and the worker, but the agreement shall not violate laws, regulations; the eight is the period of prohibition of business strife Limit shall not exceed two years.

   Third, suggest you make clear what is "commercial secrets", the employing units which shall keep secret. Anti Unfair Competition Law of the provisions of the third paragraph of article tenth, the so-called commercial secrets, is not known to the public, can bring economic benefits to the obligee, technology information and management information and the relevance of human rights to take security measures. These four elements must have at the same time, the lack of a not secret. Therefore, commercial secrets, including non patent technology and business information. Such as management, marketing strategy, customer lists, sources of information and business information; production formula, process flow, technical know-how, design drawings and other technical information. Commercial secrets about the competitiveness of enterprises, is essential to the development of enterprises, and some even directly affect the survival of the enterprise. The business secret has the following characteristics: one is the premise of commercial secret is not known to the public, and other intellectual property rights are open to the public, the patent and to a considerable degree of demand public; two is the commercial secret is a relative rights. The commercial secrets of the specificity is not absolute, not exclusive. If the other person to legitimate way to obtain the commercial secrets of the same content, they and the first person to have the same status. Trade secret owners can not stop before he has been developed to grasp the information people use, to transfer the information, also can not stop the development of the information after his people use, to transfer the information. The three is that the operators can gain, gain competitive advantage, or have the potential for commercial interests. Four is the protection of commercial secret is not legal, open the secret depends on the human right security measures and others. A technical secret may due to the application of the value of the right of confidentiality measures and technology itself and the continuation of a long time, far more than the term of patent technology protected. Five is not taken measures to keep secret the technical secrets and business information, it is not the business secret.

   Fourth introduction, from your situation, you will not be the senior management personnel, nor is the senior technical staff, whether you belong to "other is aware of the commercial secrets of the employing unit personnel", must look at the provisions of your units, if no provision or provisions are not clear, it would have to negotiate and agree to sign protocol.

   Fifth, the employer terminates the labor contract in lifting or shall pay economic compensation, there is no explicit legal provisions. But because of this limitation is deprived of workers labor rights and the right to life, so in some places by workers before leaving 12 months average wage pay 40% of income, wages income refers to the hourly wages, piece rate wages, bonuses, allowances, subsidies, overtime pay, special circumstances wages and; some the employee shall pay breach of contract damages for breach of contract, the economic compensation payment and the employer's roughly equivalent, which is consistent with the rights and obligations of the principle of reciprocity, is fair and reasonable.

   Sixth, confidentiality agreement shall generally be concluded in the employee into the company, the lifting of the labor contract and the transfer of finished work units can request for a can, there is no explicit legal provisions, I suggest you settle.

   Seventh, I think the unit seized you pay no legal basis, if they insist on attachment, you can complaint to the local labor inspection team to solve. "Labor contract law" eighty-fifth stipulates: "the employer in any of the following circumstances, the labor administrative department shall be ordered to pay the labor remuneration...... Fails to pay within the time limit, the employer shall be ordered to fifty percent of the sum payable more than one hundred percent of the standard added to laborer pay compensation: (a) is not in accordance with the labor contract or regulations of the state, timely and full payment of labor compensation; and may require payment of more than fifty percent below one hundred percent and pay for the damages". That is to say, in the labor inspection team issued a deadline for payment of labor remunerations shall, if the employer refuses to perform its obligation to pay within the prescribed time limit shall be 50% of the sum payable, more than 100% of the standard pay compensation. You in to the labor inspection team complaints, can be made in accordance with the law to pay compensation requirements. If the labor inspection team can not be resolved, they will inform you apply for labor arbitration.

    Attached: reference case

                              Such restrictions can be?

   A typical case

   Wang in 2007 May to enter the Shanghai a modern network technology Co., Ltd. (hereinafter referred to as the company) engaged in network research and development work, both sides agreed to jointly signed a 3 year contract, and agreed the competition restriction provisions -- "regardless of any reason leading to the termination or dissolution of the labor contract, Wang Mou after leaving office two years are not in self or others within the territory of Chinese business and network companies a competitive business, accordingly, network company monthly to Wang to pay 1200 yuan as economic compensation restrictions; if a default shall bear the liability for breach of contract, breach of contract for 50000 yuan."

   Work until 2009 April, Wang Mou because of body reason long illness was eventually the employing units to the medical treatment period cannot be engaged in the work on the lifting of the labor contract. After leaving, Wang has been home to continue to rest, during this period the unit has not surnamed Wang to pay any restrictions on economic compensation.

   In 2009 July, Wang was ill at this time, Wang thought of their own networks and the original agreement, so to express form issued a notice requiring companies to pay restrictions on compensation to the. Network companies have been unanswered, 2009 September Wang into another Shanghai web development company. Network company, ask Mr. Wang to leave immediately and will reissue the economic compensation, Wang refused. Network company then Wang to labor arbitration, ask Mr. Wang to bear the liability for breach of contract.

   The arbitration award

   The arbitration proceedings, Wang Mou puts forward network company has not the release of restrictions on compensation, but also through the reminder not to default payment, it is also the company default first, his illness, the economy is very tight, choose the re employment legal within. Internet companies acknowledge the receipt of the notice, but that the company did not breach of contract, the reason is the period of limitation of competition for 2 years, now the company is for transferring funds temporarily unable to issue, but will be in the term of the competition restriction before the expiry date of payment in place, Wang can not exempt from restrictions on duty.

   The final labor arbitration rejected the request for arbitration network company.

   Case analysis

   Commercial secret is often based on the modern enterprises, in the face of increasingly fierce market competition, many enterprises according to their own development to take the security measures of all kinds, and turnover of prohibition of business strife is an often used. Turnover of prohibition of business strife is the employer and the master worker of business secret in the form of a separate agreement stipulated in the labor contract or, in a certain period of time after the cancellation or termination of the labor relationship, the workers do not have a competitive relationship with the original unit other employer office, nor their own production and the original unit has the competition the relationship between similar products or managing the same business.

   "Labor contract law" after the implementation, make a more detailed provisions related to the system of prohibition of business strife.

   1 subjects on post employment restrictions. According to the current law, the post employment restraint staff are generally limited to senior management personnel, senior technicians and other units of the aware of the commercial secrets of the employer's personnel. If the employee is not exposed to the business secret, even signed the competition restriction agreement is invalid.

   2 turnover limit competition. The scope of the post employment restraint is generally divided into two categories: one is not to get and other employment the employer at the production or business operation of similar products, engage in the same business with competitive relationship; another is a worker shall not open their own production or business operation and the unit has competition between similar products or similar business. The specific scope of the prohibition of business strife can by the employer and the worker to agree, but shall follow the principle of rationality, such as "contract are not engaged in the same industry" the terms of the contract, it may cause the labor employment right unreasonable restrictions and was identified as invalid clause.

   3 post employment restrictive region. Prohibition of business strife region can be made by the employer and the employee to agree. Similarly, the employing units in the appointment process should follow the principle of fair and reasonable, not free to expand the scope of prohibition of business strife.

   4 turnover time limited competition. Prohibition of business strife is to work right limit, impede the free flow of labor in a certain extent, so the "labor contract law" clearly defined the period of restriction of competition shall not exceed two years. In the two ranges, the unit and the laborer may contract by themselves.

   5 if the employee breaches the competition restriction responsibility. "Labor contract law" to allow the employer agreed to by the workers bear the breaches the duty of breach of contract. The amount of damages is determined in consultation, employee turnover if breaches the contract, it shall bear the liability for breach of contract.

   The key to this case is exactly under what circumstances can be found that workers in violation of the prohibition of business strife obligation. Shanghai city in accordance with the local regulations, because the employer not according to the agreement to pay the competition restrictions of economic compensation, the worker is not paid, the employee may rescind the competition restriction agreement. Network company in this case in Wang Mou turnover has not been to pay economic compensation, and in Wang urge still fails to perform its obligations, so Wang no longer bear the duty of prohibition of business strife, has the right to work in other network company, network company's request is no legal basis.            East China University of politics and law labor law service centerZou Yang

   The reference case 2:

Restrictions on compensation and obligations

   [introduction] case

   In December 25, 2007, Lu and Shanghai dispatch company signed a "labor contract", the contract agreed: send Lu to a machinery company in Shanghai (hereinafter referred to as the "machinery company"), at the same time agreed: if Lu and engagement party machinery company will sign the competition restriction agreement, in terms of an inland shall not engage in the employing party agreed the competition restriction agreement have direct competitive relationship work.

Sent to machinery company, Lu and machinery company signed a "non competition and confidentiality agreement", the agreement: to terminate or cancel leave machinery company employment relationship, Lu assurance in employment within 6 months after the end not in Shanghai City, Jiangsu Province, Zhejiang province to the machinery company a rival in the direct or indirect job, machinery company competitors including but not limited to, and machinery company offering the same or similar products and service distribution company, and machinery company in the three regional sales team, production and sales of machinery company in the same or similar products, and machinery company in the same or similar service company. Leave the machinery company within six months machinery company will pay compensation to Lu Lu employment period, compensation for land base a turnover when monthly base salary 25%, compensation will be in the form of monthly monthly at the end of the month to land a wage cards, issued for a period of Lu employment period end leave machinery company for 6 months; Lu in the non competition period joined the work mentioned above and machinery company has a competitive business, whether by direct employment, indirect employment, or machinery company rival Lu in the full-time, part-time work, machinery company have the right to request the Lu to pay liquidated damages, liquidated damages amount = Lu left monthly base salary two times 6.

   February 20, 2008 from the machinery company turnover. March 17, 2008, Lu and a dispatch company signed a "labor contract", and sent Lu to another machinery company, as an application engineer, contract period from February 25, 2008 to March 31, 2011, this machine is the company's competitors. The old club was informed that in 2008, the arbitration on 9 June Shanghai Pudong New Area labor dispute arbitration committee, asked Lu to pay liquidated damages 69300 yuan.

   [results] the referee

   Make a ruling in November 3, 2008 in Shanghai City, Pudong New Area labor dispute arbitration committee, ordered Lu machinery company 69300 yuan default payment. Land is not a, to the Shanghai Pudong New Area people's court. The court ordered the land a payment machinery company breaches the obligation of compensation of 17325 yuan.

   [case]

   This case is a typical case of restrictions on compensation payment obligations, the focus of this case is that the employer fails to pay economic compensation, whether the prohibition of business strife duty workers can of course exemption? "Labor contract law" the relevant competition restriction provisions did not involve employers pay economic compensation obligation and employee fulfill the order of prohibition of business strife duty, makes all still can not form a unified understanding, resulting in the same case may give different judgments in different regions. Only Shanghai, notify the original Shanghai City Labor and Social Security Bureau on the implementation of "Regulations" of Shanghai labor contract regulations (two), "because the employer not according to the agreement agreed to pay economic compensation, the worker is not paid, the employee may rescind the competition restriction agreement." Can be seen from the above provisions, in Shanghai, if the employer fails to pay damages to workers, and can not be for the prohibition of business strife obligation. The law gives workers a notice obligation, is only in the worker to the employer required to pay economic compensation, the employer still does not pay the case, workers can not perform the duty of prohibition of business strife. The employer does not pay economic compensation, workers without notice, and directly to a rival, need to bear the adverse consequences of breach of contract.

                                         In this paper, author: Mou Mu

                        (my QQ number is 594241989, 1762818809)