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Chapter 402 Final Statement

"I. Regarding the issue of liquidated damages for breach of non-compete obligations

Although the plaintiff violated the non-compete business, he withdrew from the third party immediately after receiving the notice from the defendant, corrected the wrong behavior in a timely manner, and did not cause heavy losses to the defendant, and the plaintiff is still performing the obligations stipulated in the non-compete agreement .

It took two months from the time when the plaintiff joined the third-party competing product company to quitting the actual work. According to the agreement, the liquidated damages that the plaintiff needs to bear should be twice the two-month competition compensation.Calculations should not be made on the aggregate of all compensation payments.

That is, the total liquidated damages that the plaintiff should pay to the defendant is: 2 yuan (4 yuan compensation per month, a total of 8 yuan for two months) multiplied by [-] = [-] yuan.

[-]. Regarding the issue of the non-compete period

The plaintiff and the defendant agreed that the plaintiff’s non-competition period should be deducted from the trial period for arbitration and litigation. The agreement actually requires the plaintiff to perform the non-competition obligation within the period: the trial period for arbitration and first-instance and second-instance (if any) litigation procedures plus The number of months during which non-competition compensation is actually paid (the longest period shall not exceed twelve months).

From the perspective of workers' freedom to choose a job, although the law has statutory restrictions on the trial period of arbitration and litigation procedures, the above-mentioned trial period in legal practice is only theoretical, and in many cases the trial period is not specifically determined.

Therefore, there is great uncertainty in linking the trial period of labor arbitration, first instance and second instance with the non-competition period, which does not meet the specific legislative purpose of the non-competition clause.

We all know that the trial procedure of labor dispute cases is special, and many cases will go through the "one arbitration and two trials" procedure.

Once a labor dispute arises between the laborer and the employer, the above-mentioned agreement will extend the non-compete period to an unpredictable and quite long period, which is likely to exceed two years.

Due to the uncertainty of the time limit, such an agreement will cause the laborer's right to choose a job to be in a pending state for a long period of time.

In addition, from the perspective of judicial remedies, for the plaintiff employee, if he has a dispute with the defendant due to the performance of the non-competition agreement and initiates an arbitration or lawsuit, according to the agreement, the employee still needs to perform the non-competition agreement during the trial of the labor arbitration and litigation. restrictive obligations, the non-competition period will be extended.

According to the agreement on non-competition, laborers will be caught in a dilemma, that is, "the period of non-competition will be extended if they seek judicial relief", and "their rights and interests will be damaged if they do not seek judicial relief". Laborers' right to judicial relief.

However, for the defendant company, the agreement stipulates that the defendant company can unilaterally and disguisedly extend the non-competition period of the employees by filing labor arbitration and litigation without negotiating with the plaintiff, which exempts the employees from other disputes to a certain extent. Statutory responsibilities have increased the obligations of workers.

To sum up, the plaintiff believes that the stipulation in the non-compete agreement about deducting the time limit for labor arbitration and litigation, that is, "...if an arbitration or lawsuit is initiated due to a dispute arising from the performance of this agreement... the employee shall perform the non-compete The term of the obligation, after deducting the time limit for arbitration and litigation, should not be shorter than the above-mentioned months of non-compete, which violates the first paragraph of Article 20 of the "Labor Contract Law of the People's Republic of China" ([-] ) of the "employer is exempted from its statutory responsibilities, excluding the rights of workers" shall be invalid.

According to the agreement, the non-competition period for the plaintiff should be twelve months, counted from the date of the plaintiff's resignation and ending on October [-], [-].

The above is the plaintiff's final statement, over! "Wang Chuan read the content he had prepared before, and Judge Wu listened carefully without interrupting him.

"The defendant makes a final statement!" Judge Wu turned to look at the old lawyer and said.

"The defendant believes that the plaintiff breached the contract first, and the liquidated damages should be calculated based on the total amount of non-competition compensation, and should not..." The old lawyer pushed down his reading glasses, and read with an A4 paper, his tone sonorous and forceful.

After the trial, Wang Chuan called Zhou Zheng as soon as he left the court to inform him of the trial, and then returned to the law firm.

"I've been in court all morning, talking all morning, I'm exhausted!" Wang Chuan went straight to the glass teacup on the workstation as soon as he entered the law firm, picked up the teacup and poured half a cup of boiled water down.

"I also held a court session yesterday. What's going on recently? Cases are being held one after another. It feels like the end of the year." Sister Wang said carelessly.

"Don't you know about the financial crisis in the beautiful country?" Zheng Yi walked towards the water dispenser with a teacup and a smile.

"I know, didn't it happen last year? It's been [-] and still has an impact?" Sister Wang asked in surprise.

"You don't understand this. There is a transmission process in any crisis. It starts to happen in the financial sector. With the occurrence of the subprime mortgage crisis in the financial sector, other industries will also be affected. So this year's cases will not be less than last year .” Zheng Yi said.

"I heard that a red circle firm in the imperial capital took over a lawsuit last year, and the legal fee alone was over [-] million yuan. It has been doing it for almost a year." Hao Renyuan approached and said.

"What is a year? If you can give me [-] million in legal fees, ten years will do!" Zheng Yi said with wide eyes.

"Come on! Can this kind of business come to our firm? Big businesses go to big firms, and big cases go to big lawyers. We earn hard money, physical strength plus brainpower. Other barristers really make money by knowledge, drinking tea Just make money." Sister Wang said.

"It's true. My friend works in the Chinese representative office of a foreign oil company. The lawyer their company hires is the one with the red circle on the head, and they charge by the hour!..." Du Wenhui said.

"What's new about charging by the hour, we also charge by the hour!" Hao Renyuan said disapprovingly.

"Hehe, you are right. But they charge [-] yuan an hour. Please note that it is not RMB, but US dollars. We charge [-] yuan an hour. This is the gap! There is an insurmountable gap in the middle!" Du Wenhui laughed. road.

"By the way, Lawyer Liu Anhua may be leaving, do you know?" Guo Tong asked in a low voice.

"I don't know, what's going on?" Fu Ziwen asked.

"Did you go to another institute?" Sister Wang asked in surprise.

"No! He's going back to college to be a teacher." Guo Tong whispered.

"No way! Didn't he come out of college? Why did he go back again?" Fu Ziwen was surprised.

Everyone in Wang Chuan also pricked up their ears, wanting to hear the details.

"I don't know the details. Lawyer Liu and Lawyer Zheng didn't come to the firm very much after they became commission lawyers last year. I heard from the administration." Guo Tong said in a low voice.

After get off work, Wang Chuan was working overtime when he heard footsteps. He looked up and saw Liu Anhua walking into the law firm.

(End of this chapter)