If an employee who has signed a non competition restriction changes jobs and the original company claims, how will the court decide? Mr. Wang, the technician, transferred from Wande Information Technology Co., Ltd. (hereinafter referred to as Wande) to Shanghai BiliBili Technology Co., Ltd. (hereinafter referred to as bilibilibili). Wande believed that Mr. Wang violated the non competition agreement signed by both parties, applied for arbitration and asked Mr. Wang to return the non competition compensation paid by Wande and pay a non competition liquidated damages of 2 million yuan, The arbitration supported Wande's request. Mr. Wang refused to accept the arbitration and sued. The first instance ruled that Mr. Wang returned the compensation and paid 240000 yuan of liquidated damages. Mr. Wang refused and appealed to Shanghai No. 1 Intermediate People's Court (hereinafter referred to as Shanghai No. 1 Intermediate People's court). On February 16, according to the information of Shanghai No. 1 middle school court, the second instance of the case recently concluded that whether the non competition restriction was violated should not be confined to the business scope registered in the business license, but should be judged by comprehensively reviewing the company's service objects and the work contents of employees. Mr. Wang was ordered to continue to perform the non competition agreement, but there was no need to return the compensation and pay liquidated damages. If employees change jobs and beep beep beep beep beep beep beep beep beep beep beep beep beep beep beep beep beep beep beep beep beep beep beep beep beep beep beep beep beep beep In July 2018, Mr. Wang joined Wande. The two sides signed a labor contract from July 2, 2018 to August 31, 2021, which agreed that Mr. Wang would work in the post of intelligent data analysis with a monthly income of 20000 yuan. In July 2019, Mr. Wang and Wande signed a non competition agreement, stipulating the rights and obligations of both parties on non competition. In July 2020, Mr. Wang resigned to Wande and terminated the labor contract with Wande. After that, Wande sent a reminder letter on non competition to Mr. Wang, asking him to abide by the non competition agreement. The company will pay him compensation for non competition. He needs to provide the labor contract and social security records of the new unit. After that, Wande paid Mr. Wang 6796 yuan of non competition compensation in August and September 2020, but did not receive the labor contract and other materials between Mr. Wang and the new company. After the urging failed, Wande thought that it had violated the non competition agreement signed by both parties, so it applied to the labor and personnel dispute arbitration committee for arbitration. After the arbitration investigation, Mr. Wang took office in BiliBili. In February 2021, the Arbitration Commission ruled that Mr. Wang continued to perform the obligation of non competition according to the agreement, returned the paid compensation of 6796 yuan, and paid the liquidated damages of non competition of 2 million yuan according to the agreement. Mr. Wang refused to accept and sued to the court. Photo source: Photo Network (data map) First instance: the employee violates the non competition agreement and pays liquidated damages of 240000 yuan Mr. Wang believes that BiliBili and Wande do not form a competitive relationship, and his work field is very different from his previous work. Therefore, he requests to revoke the arbitration award and change the judgment. He does not need to continue to perform the obligation of non competition, and does not need to return compensation and pay liquidated damages. The court of first instance held that the business scope of Wande and BiliBili overlapped and belonged to a competitive enterprise, and Mr. Wang's positions in both companies were relevant positions in the computer field, which was potentially possible to infringe his competitive advantage by using the trade secrets he had in Wande. Therefore, Mr. Wang's behavior violates the non competition agreement. As for the amount of liquidated damages, Wande failed to provide evidence to prove the amount of losses caused by Mr. Wang's breach of contract, and Mr. Wang believed that the agreed liquidated damages were too much higher than the actual losses suffered by Wande, so it was adjusted to 240000 yuan according to Mr. Wang's monthly salary standard and his working years at Wande. The court of first instance then ruled that Mr. Wang continued to perform his obligation of non competition, returned compensation and paid liquidated damages of 240000 yuan. Mr. Wang refused and appealed to the first intermediate people's Court of Shanghai. Second instance: whether it violates the non competition restriction requires comprehensive judgment, and there is no need to pay liquidated damages for changing the judgment Mobile phone terminal mobile phone screenshot, Wan de mobile website screenshot, ten thousand tiktok and platform account information were presented in the second instance, which was aimed at explaining that the audience of wind and beep was totally different. The two parties did not have competition relationship, so they did not violate the competition restriction agreement. Request to revoke the judgment of first instance and support his application of first instance. The first intermediate people's Court of Shanghai held that whether Mr. Wang violated the agreement on non competition. In this case, compared with the business scope of the two companies, there is indeed a certain overlap. However, when registering, the business scope of Internet enterprises often includes software and hardware development, technical consultation, technology transfer and technical services. If only based on this, it will obviously cause great obstacles to the reemployment of Internet employees, especially software engineers, cause great waste of social human resources, and run counter to the legislative intent of the non competition system. Therefore, when judging whether it constitutes a competitive relationship, it should also be comprehensively evaluated in combination with the actual business content and audience of the company. Photo source: Photo Network (data map) In this case, Mr. Wang proved that Wande claimed on its wind financial mobile terminal that the wind financial terminal is the choice of hundreds of thousands of financial professionals and the best production tool and platform of China's financial industry, and such introduction is also available on Wande's official website. It can be seen that Wande's current business model is mainly to provide financial information services, and its main audience is relevant financial institutions or financial academic research institutions. In contrast, BiliBili, as we all know, its main business is cultural community and video platform, that is, providing cyberspace for users to upload videos and communicate. It has a wider audience, especially young people. There is a significant gap between the two in terms of business model, corresponding market and audience. On this premise, Wande only claims that the two enterprises form a competitive relationship based on the coincidence of the business scope registered by both parties, and has not completed its burden of proof. Moreover, the key restricted enterprises in the appendix of Wande's non competition agreement are all financial information industries, which is enough to show that Wande also believes that its main competitor should be financial information service enterprises. Therefore, Mr. Wang did not violate the non competition agreement in this case. On whether Mr. Wang should continue to perform the non competition agreement. The first intermediate people's Court of Shanghai held that the non competition agreement signed by Mr. Wang and Wande did not violate the mandatory provisions on the effectiveness of laws and regulations, so the agreement is legal, valid and binding on both parties. As it is still within the non competition period, both parties shall continue to perform the non competition agreement. Shanghai No. 1 Intermediate People's court then ruled that Mr. Wang continued to perform the non competition agreement and changed the judgment that he did not need to return compensation and pay liquidated damages. In this regard, the judge said that considering whether workers violate the non competition agreement, the most core thing is to judge whether there is a competitive relationship between the original employer and the self operated or employed units of workers. On the one hand, it is necessary to take into account that the registered business items of enterprises are often inconsistent with the actual business items in practice. On the other hand, it is necessary to consider that the registration category of business scope is a large category divided by the industrial and commercial department. Therefore, the review of this competitive relationship should not be confined to the business scope of business license registration. In specific cases, it can also be reviewed from multiple perspectives such as whether the actual business contents of the two enterprises coincide, whether the service objects or the audiences of the products they produce coincide, and whether the corresponding markets coincide, so as to restore the truth of the facts, so as to take into account the interests of employers and workers, so as to achieve the final balance. It should be emphasized that according to the non competition agreement between the two parties in this case, the worker shall report the work situation to the original employer on time for the original employer to judge whether he has violated the non competition agreement. This case is because the laborer failed to fulfill the reporting obligation, which led to the reasonable doubt of the original employer, and then led to a dispute. It is also specially reminded that when performing the non competition agreement, workers should abide by the agreed obligations and perform the agreement in good faith. (Xinhua News Agency)