In 2011, Mr. Li joined a trading company and was engaged in sales. On February 19, 2017, Mr. Li submitted a "Resignation Application Form" and applied for resignation on the grounds of "personal reasons". On March 15, 2017, the two parties terminated the labor contract relationship. The "List of Transfers for Resignation" signed and confirmed by Mr. Li on the same day clearly outlines that "no renunciation of performance" does not compete or persuade the obligations. A few months later, the trading company sued Mr. Li to the court, demanding that the penalty for liquidated damages exceed 850,000 yuan and continue to fulfill the obligation of to restrict competition.
[Case fact]
Both the Trading Company and Mr. Li recognized it. Before Mr. Li resigned, he served as the Beijing Regional Sales Director of the Trading Company and the Sales Director of the China Government Department. The main work content is: leading the sales team to sell office equipment, labor protection supplies, and office supplies. Before leaving the job, Mr. Li's monthly basic salary was 70,920 yuan before tax (based on this calculation, totaling about 850,000 yuan per year), and there were additional unfixed bonuses, and the year-end bonus did not exceed 150,000 yuan after tax.
There is a restriction on competition between the two parties. Article 8.3 of the " Labor Contract " between the two parties stipulates that during the period of restricted competition for one year after the termination of the contract, Mr. Li shall not directly or indirectly provide confidential information or physical work, be employed, hired, provide physical services (including but not limited to consulting, consulting, agency services, etc.), or hold any interests or interests in such entities, etc.; the trading company shall pay Mr. Li a monthly economic compensation for restricted competition for restricted competition for restricted competition for the period of restricted competition for the period of restricted competition for the month, and the monthly amount is equivalent to one-third of the basic wage amount in the month before the termination of the labor contract; if Mr. Li violates the obligation of restricted competition for restricted competition, he shall pay the company a liquidated damages equivalent to three times the total amount of restricted competition for restricted competition as agreed in this agreement.
After Mr. Li resigned, the trading company paid the compensation for the restricted competition to Mr. Li at the standard of 23,640 yuan per month, but failed to transfer the money successfully.
Trading Company claimed that after Mr. Li resigned, he joined the competitor's office, which violated the obligations of the restricted competition agreement. To this end, the trading company submitted a notarization certificate and the industrial and commercial registration information of a well-known stationery company of its competitor as proof. The notarization shows that in April 2017, a stationery company's official website and WeChat public account published an article "The company was invited to attend the second National Public Resources Trading Reform Summit" and stated that Mr. Li attended the meeting as the national head of the company's public utility department and delivered a keynote speech at the meeting on public procurement issues. Industrial and commercial registration information shows that the company's business scope includes stationery and cultural goods sales and legal representative and shareholder information. Mr. Li explained that he attended the meeting in the name of the investment director of an investment company and was arranged to make a keynote speech. His identity was not indicated at the meeting, but he only attended the meeting as an expert in the industry. After the stationery company published the article, he learned about the relevant reports. Due to the false content of the report, the stationery company had been asked to revise and delete the corresponding article.
Mr. Li argued that he did not violate the agreement on the restriction of competition and submitted materials such as "Labor Contract (Labor Detached Employees)" with a human resources company, social security payment records and other materials as evidence. The trading company recognized the authenticity of the above evidence, but submitted industrial and commercial registration information to prove that the legal representative of the new employer "investment company" mentioned by Mr. Li is a competitor of the trading company, and is the legal representative of a well-known stationery company.
[Judgement]
After trial, the court held that:
First, there is a restriction on competition between the two parties. As a senior management of the enterprise, Mr. Li should honestly and trustworthyly fulfill the restriction on competition obligations agreed by both parties.
Second, the trading company has paid the restricted competing compensation as agreed. Although Mr. Li explained the acts of canceling the account and returning the funds, he still had the obvious subjective intention to avoid receiving and fail to receive the restricted competing compensation. Therefore, the payment of economic compensation for competition does not affect the agreement between the two parties to restrict competition, that is, Mr. Li should still comply with the obligations of honesty and credit agreed by both parties.
Third, although Mr. Li said he had joined the investment company, the legal representative of the investment company and a well-known stationery company are the same natural person and have an affiliated relationship between the two companies.The well-known stationery company did publish articles on its official website and public WeChat account, reporting that Mr. Li participated in the second National Public Resources Trading Reform Summit as the national head of the company's public utility department and delivered a keynote speech on the public procurement model. This well-known stationery company does have a competitive relationship with trading companies in the fields of stationery sales and other fields. Therefore, the evidence presented by the trading company is enough to prove that Mr. Li violated the obligation to restrict competition after leaving the company.
Looking at the whole case again, in this case, Mr. Li applied for resignation for personal reasons in February 2017 and terminated his labor relationship with the trading company on March 15, 2017. Two working days later, Mr. Li established a labor relationship with the off-case company and agreed that the off-case company would be dispatched to the investment company, and the investment company and a well-known stationery company are enterprises under the same legal representative. After resigning, Mr. Li took the initiative to cancel two bank accounts that could be used to receive economic compensation for restricted competition. All appearances point to Mr. Li's subjective intention of violating the agreement on the restriction of competition.
Finally, the court did not support Mr. Li's claim to reduce the penalty for competing and based on the average salary amount of Mr. Li's 12 months before his resignation, it was determined that Mr. Li should pay the penalty for trading company in accordance with the law, which was calculated to be more than 850,000 yuan. After the verdict of
, Mr. Li filed an appeal. The final judgment of the second instance rejected Mr. Li's appeal and upheld the original judgment.
(Editor in charge: Li Wei)
