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Three years in vain! Sun, a programmer, compensated Tencent 976000 yuan and returned 158000 yuan for violating the competition agreement

via:博客园     time:2021/3/4 19:39:58     readed:266


According to public information, sun was born in July 1991 and joined Tencent on July 15, 2015. The two parties signed a labor contract with the contract period from July 15, 2015 to September 30, 2018. Sun works in the aurora borealis studio. After the expiration of the contract, both parties renewed the labor contract to September 30, 2024, and agreed that sun would work in the innovation product center.

On March 14, 2019, sun resigned and worked until March 28, 2019. On March 27, 2019, Mr. Sun signed the notice of competition restriction issued to him by Tencent, stating that the period of competition restriction of Mr. Sun is from March 29, 2019 to March 28, 2020, and reiterating the agreement of competition restriction, liability for breach of contract and standard of liquidated damages that Mr. Sun should abide by in the labor contract. Mr. Sun signed on the notice.

According to the judgment, in March 2018, sun's fixed salary was 20050 yuan. From April to September in 2018, the monthly fixed salary is 21850 yuan. From October 2018 to February 2019, the monthly fixed salary is 25150 yuan.

From March to June 2018, Tencent company paid a monthly rental subsidy of 1250 yuan to sun, and the rental subsidy was 568.18 yuan in July 2018. From May to July 2018, Tencent company paid sun's other bonuses of 21306.67 yuan, 21306.67 yuan and 21306.66 yuan each month.

Tencent company has issued a total of 9 months of non competition economic compensation to sun in accordance with the standard of 22569.36 yuan per month since April 2019, totaling 203124.24 yuan.

Since April 2019, Mr. Sun has provided Tencent with "Notice of personal information of non compete personnel" in the form of e-mail every month, stating his post after leaving Tencent. He was unemployed in the first two months and worked in kezhirui company since June 2019. His job content and position are information system engineer, responsible for the research and development of the company's management platform. We sign the labor contract from June 3, 2019 to June 2, 2021 with kezhirui every month.

On January 21, 2020, Tencent applied to Shanghai Xuhui District Labor and personnel dispute arbitration commission for arbitration, requiring sun to: 1. Return 203124.24 yuan of non competition compensation from March 29 to December 31, 2019; 2. Pay 1083329.28 yuan of liquidated damages for breach of non competition obligation.

On May 7, 2019, the Arbitration Commission made an award: 1. Sun returned to Tencent 203124.24 yuan of non competition compensation within seven days from the effective date of the award; 2. Sun paid to Tencent 1082329.28 yuan of non competition penalty within seven days from the effective date of the award. Sun refused to accept the ruling and filed a lawsuit to the court of first instance.

According to the facts and sun's work situation, the Court confirmed that sun had violated the obligation of non competition when he left the company and worked in a company competing with Tencent. The court should return the non competition economic compensation of 158000 yuan paid by Tencent during the breach of contract and pay the non competition liquidated damages of 976000 yuan.

During the second instance of the court, neither party submitted new evidence. After the trial, it is found that the facts determined by the court of first instance are correct, and the court confirms them according to law.

The court held that the focus of dispute in the second instance of this case lies in: 1. Whether sun violates the non competition agreement; 2. If sun violates the non competition agreement, whether the penalty determined by the court of first instance is reasonable; 3. If sun violates the non competition agreement, how much non competition compensation should be returned.

According to the first instance, Tencent was founded on July 23, 2008. Its business scope is to develop, design and manufacture computer software, sell self-produced products, provide relevant technical consultation and technical services, and engage in the import and export business of goods and technology. The companies or other organizations that Tencent has agreed to be competitive in the terms of non competition, including but not limited to Alibaba, Baidu, Qihoo 360, byte beat (today's headline) and their affiliated companies.

Previously, Xu and Qian, former employees of Tencent, were sued by Tencent for violating the competition agreement. Among them, Xu was awarded a penalty of 19.4 million yuan, which became the largest penalty in domestic competition restriction cases.

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