Questions about confidentiality agreements and non compete contracts are answered by legal experts

Hello, non-compete is one of the two situations under which the employee can pay liquidated damages as clearly stipulated in the Labor Contract Law. (Except for these two circumstances, the employee shall not be agreed to pay liquidated damages) See the following provisions of the Labor Contract Law:

Article 23 The employer and the employee may agree in the labor contract to keep the employer's trade secrets and confidential matters related to intellectual property rights.

For employees who are obliged to maintain confidentiality, the employer may stipulate a non-compete clause with the employee in the employment contract or confidentiality agreement, and stipulate that after the termination or termination of the labor contract, the employee will be compensated monthly during the non-compete period. If the employee violates the non-compete agreement, he shall pay liquidated damages to the employer in accordance with the agreement.

Article 24 The persons subject to non-competition restrictions are limited to the senior management personnel, senior technical personnel and other personnel who have the obligation of confidentiality of the employer. The scope, region, and duration of the non-compete restriction shall be agreed upon by the employer and the employee, and the agreement on the non-compete restriction shall not violate the provisions of laws and regulations.

After the dissolution or termination of the labor contract, the period of non-competition for the personnel provided for in the preceding paragraph to go to another employer that has a competitive relationship with the unit that produces or sells the same kind of products or engages in the same kind of business, or starts their own business to produce or operate the same kind of products or engage in the same kind of business, shall not exceed two years.

Article 25 Except as provided for in Articles 22 and 23 of this Law, an employer shall not agree with a worker that the worker shall bear liquidated damages.

And then your question :

1. The compensation for non-competition is usually not paid, only during the non-compete period, so your usual salary does not include this money;

2. The law does not clearly stipulate the amount of compensation for the prohibition of competition, and it can be agreed by the parties. There is an agreement on the amount of compensation in the labor contract between you and the employer, and in principle, the contract can be enforced, but I believe that the amount should not be lower than the local minimum living standard, so if the local minimum living standard is higher than 300 yuan, you can file a labor arbitration for adjustment;

3. If the employer does not pay you economic compensation, you can not comply with the non-compete agreement;

4. The geographical scope of the prohibition should generally be stipulated, and the time should not exceed 2 years;

5. If the original employer pays you non-compete economic compensation, and you violate the contract to work in a competitive unit, the original employer can hold you liable for breach of contract.

I now plan to take over the management of a seafood hotel, including the hotel's equipment, as well as the technology. When signing an assignment contract with the other party, you should pay attention to those matters so as not to infringe on yourself in the future.

Legal Analysis: 1) The confidentiality obligation is generally a direct provision of the law or an accompanying obligation of the labor contract, and the employee is obliged to keep the trade secret, regardless of whether the employer and the employee have signed a confidentiality agreement. The non-compete restriction is based on the agreement between the employer and the employee, and if there is no agreement, there is no need to bear the non-compete obligation.

2) The confidentiality obligation requires that the confidential party shall not divulge trade secrets, and the emphasis cannot be "said", while the non-compete obligation requires that the employee cannot work in a competitive unit or engage in competitive business on his own, and the emphasis is on not "doing".

3) Confidentiality ObligationThe obligation of the employee is limited to confidentiality and does not restrict the employee's right to employment, while the non-compete obligation not only restricts the employee's disclosure of secrets, but also restricts the employee's employment, and the burden on the employee is much heavier.

4) The confidentiality obligation is generally longer, as long as the trade secret exists, the employee's confidentiality obligation exists, while the non-compete period is shorter, not more than two years.

Legal basis: Civil Code of the People's Republic of China

Article 495:A letter of subscription, order or reservation that the parties agree to conclude a contract within a certain period of time constitutes a reservation contract.

If one of the parties fails to perform its obligation to conclude a contract as stipulated in the reservation contract, the other party may request it to bear the liability for breach of contract in the reservation contract.

Article 496:Standard clauses are clauses that are drafted in advance by the parties for the purpose of repeated use and are not negotiated with the other party at the time of conclusion of the contract.

If standard clauses are used to conclude a contract, the party providing the standard clauses shall follow the principle of fairness to determine the rights and obligations between the parties to the Heshou clan, and take reasonable measures to remind the other party to pay attention to the clauses that have a major interest in the other party, such as exempting or reducing its liability, and explain the clauses in accordance with the requirements of the other party. If the party providing the standard clause fails to perform the obligation of reminder or explanation, resulting in the other party not paying attention to or understanding the clause in which it has a material interest, the other party may claim that the clause does not become the content of the contract.