1、离婚协议中竞业禁止条款的性质与效力（The nature and effect of non competition clause in divorce agreement）The nature and effect of non competition clause in divorce agreementThis article source: paper http:/ appellant (plaintiff in the original trial): Chen yan.Appellant (defendant in the original trial): Chen zhong.C
2、hen Mouyan and Chen loyal former Department of UniversityStudy, two people registered marriage in January 1996.Since 1995, two people have started their business after marriageIn the name of Chen Mouyans relatives, 11 companies were established, of which 8 were sales companies, 3 were production com
3、panies, and the main products were inkjet printers.In July 2007, Chen Mouyan and Chen Chung ChungIn discussing the dissolution of marriage, 8 sales companies are appointed to Chen Mouzhong. 3 production companies are owned by Chen Mouyan, and the duty of non competition and the liabilities for breac
4、h of contract are stipulated.The divorce agreement stipulates that Chen is loyal to each otherAnd Chen Mouzhongs relatives and all of the company shall not self built and Chen Mouyan produced the same or similar products of the factory, and Chen Mouyan shall not engage in the nature of the product p
5、roduction and sales operations, shall not provide any service to competitors or disclose any confidential information. In violation of the confidentiality obligations or non competition obligations stipulated in the agreement, Chen Zhong must pay Chen Mouyan 10 million yuan for breach of contract.Up
6、on the entry into force of the agreement, the 8 sales companiesThe registration of legal representatives and shareholders has been made, and all the former 8 sales companies have been represented by Chen Mouyan relatives as legal representatives or shareholders, all of whom have changed to Chen, Chu
7、ng or their relatives.In December 2007, Chen Zhong began to serveAt the same time, all 8 sales companies stopped selling Chen Yans products and switched to the similar products produced by a jet printing machine company in Shanghai. Later, Chen Yan Zhong Chen divorce agreement in violation of the pr
8、ohibition of contractual obligations on the grounds, to the court proceedings, asked Chen Zhong bear 10 million yuan of liquidated damages.judgmentThe peoples Court of Shanghai, Putuo District, held that the relevant agreements signed by the two parties were true statements of both parties, and they
9、 were not lawful and valid in accordance with the provisions of the law, and both parties should perform the agreement in accordance with the agreement. Chen Mouyan has faithfully fulfilled the obligations agreed upon, Chen Zhong has also won the agreed interest, but Chen Zhong did not abide by the
10、commitments, in violation of the agreed prohibition obligation, Chen Yan matters engaged in damage to the interests, and evade liability for breach of contract, so Chen Mouzhong should be liable for breach of contract.Taking into account the combination of Chen Mouyan and Chen ZhongWith the agreemen
11、t and the performance of the actual cause of the price and the damage, the Chen Mouzhong and other factors, the Chen Mouzhong bear the liquidated damages of 500 thousand yuan. Chen Mouyan requested the amount of 10 million yuan liquidated damages is too high, the court will not support.After the ver
12、dict, Chen Mouyan, Chen Zhong Zhong are notTake the first instance and file an appeal. Chen Mouyan insisted on the proposition in the first instance. Chen Mouzhong denies breach of contract, does not agree to compensate 500 thousand yuan liquidated damages.By the second intermediate peoples Court of
13、 ShanghaiHearing that, the focus of dispute in this case is: 1. both parties signed the agreement of prohibition of competition is effective; 2. Chen Zhong is a violation of the agreement; 3. if the breach of contract, Chen Zhong how to assume the liability for breach of contract.For the first focus
14、 of the dispute, the court held thatFor example, the term “non competition“ refers to the prohibition of profit seeking behavior by a particular business entity for a particular person with a specific civil legal relationship. The scope of application of non competition is not limited to the employi
15、ng units and workers. From the actual situation of the case, the parties have agreed between the necessary prohibition, because Chen Yan in the divorce agreement all 3 production companies, if the loss of accumulated sales channel support, its value will be greatly reduced. Chen Mouyan and Chen Mouz
16、hongs non competition agreement does not violate the provisions of the law, should be recognized as valid, but because of non competition involving public interests, the court should conduct judicial review.For the second controversial focus, the court held thatAccording to the written evidence, it
17、is enough to prove that Chen Zhong violated the contractual obligations. Although Chen Zhong in the first and second trial are resistant, argued that the 8 sales companies are not legally related,Dont act 8 sales companies should not be the responsibility, but according to the law, the parties agree
18、d by the third person to fulfill the obligations of the creditors, the third person fails to perform the obligations or non-conforming performance, the obligor shall bear the liability for breach of contract to the creditor. Therefore, Chen loyalty should still bear the responsibility for breach of
19、contract due to the 8 sales companies do not act on behalf of Chen Mouyan products.For the third controversial focus, the court held thatIn accordance with the value of the company at the time of divorce and the loss due to breach of contract, the liquidated damages of $10 million are not inappropri
20、ate. Since Chen Mouyan voluntarily lowered the amount of liquidated damages during the second instance, the court ordered the liquidated damages to be adjusted to 3 million mentFirst, the different views of the case, as the number and scale of family businesses in Chinas private economy have expande
21、d, a growing number of divorce litigation involving the split between the two sides of the joint venture. In general, the couple divorced when there are three ways to deal with the common enterprise, one is a party to the other party after compensation by a party to continue operation; two enterpris
22、es will be transferred to third parties, both parties shall transfer the segmentation; the three sides continue to operate or agreed by a party after the camp, according to income the proportion of equity. The segmentation of the common property of the couples point of view, novelty of the case is t
23、he parties to choose a special way to jointly operate the business enterprise management division, respectively, and agreement, any party shall not compete with each others business operation. In order to ensure that both sides in business segmentation after their companies can still keep ahead of p
24、rofitability and revenue, the natural need to make the necessary restrictions on the operation behavior and mode of operation of both sides, the prohibition clause has become the ideal means of protection. Just imagine, if there is no prohibition obligations constraints, corporate division after a p
25、arty teamed up with competitors, not only will make the other side of the enterprise value is greatly reduced, even in the fierce competition has been eliminated, the divorce agreement is also difficult to achieve the expected benefits, in this case as an example. However, there are three different
26、opinions on how to determine the nature and effectiveness of the non competition clause in this case.The first point of view is that both partiesThe stipulated non competition clause is invalid. The reason is that the non competition agreement is the limit of competition, involving the public intere
27、st and the right to employment of the parties, the parties can not arbitrarily agreed. For contractual non competition, China has only the provisions of the labor contract law. From the provisions of the legal provisions of the labor contract law, the twenty-third is the mandatory provisions, that i
28、s, only the workers and employers can stipulate non competition provisions. Twenty-fourth further provides for the prohibition of business strife in terms of the scope of the subject, which is limited to units senior management, senior technicians and other confidential personnel, does not apply to
29、other subjects. There is no direct labor contract relationship between the two parties in this case and does not conform to the provisions of the labor contract law. Therefore, the non competition clause shall be invalid. The second view is that the non competition clause is valid. Although there is
30、 no relationship between the parties to the labor contract, the labor contract law does not apply, but our law does not expressly prohibit other provisions of prohibition, so according to the principle of freedom of contract, the parties of the noncompete agreement shall be valid. However, the amoun
31、t of liquidated damages for the 10 million yuan stipulated by the parties is too high and should be adjusted to 500 thousand yuan according to law.The third view is that the agreement between the two sidesIf the content does not violate the mandatory provisions of the law, it shall be deemed effecti
32、ve. The non competition clause stipulated by the two parties in the divorce agreement is similar to the non competition duty in the process of business transfer, so it is necessary. The business itself has an independent value, Chen Mouzhongs default behavior to the losses caused by the other side i
33、s the essence of Chen Mouyan divorce share the companys overall business value down 10 million yuan, so the two sides agreed liquidated damages is not unreasonable, should be supported.In this case, the court of first instance adopted secondKind view,The court of second instance adopts third views.
34、The verdict, the main difference is that a court of second instance, default identification of the amount, the verdict of the amount of liquidated damages of 500 thousand yuan, 3 million yuan for the second instance verdict, but the court of second instance in the logic of the appellant 10 million y
35、uan penalty claim positive attitude. The differences between the courts of second instance in determining the amount of liquidated damages are essentially due to the difference in the understanding of the nature of non competition clauses in the divorce agreement. Court of first instance mainly from
36、 the perspective of Chen Yan direct property loss to determine liquidated damages, the second instance court is based on Chen Mouyans share of the companys operating value impairment as the basis, that the amount of liquidated damages. Although the court of second instance has not used the concept o
37、f business in the judgment, the theoretical support for the high liquidated damages is derived from the recognition of the concept of business. “That is, the trial court that Chen Mouzhong gave Chen Mouyan the losses caused by the breach is Chen Yan companys overall operating losses, the overall dep
38、reciation is Chen Yan company after the divorce due to breach of contract and Chen Zhong happen. The reason for the above differences lies in the fact that the concept of business has not been established in our commercial legislation, and the law has no narrow scope for the application of the prohi
39、bition of business strife. In theory, the understanding of the nature of non competition is still not deep enough. At present, in case of divorce, property division in addition to the traditional movable and immovable property, jointly operated family business segmentation phenomenon is relatively c
40、ommon, can foresee the competition similar to the present case no agreement will be more and more, therefore, has a certain significance on the judgment of this case similar cases in the future the trial.Two, the independent value of business and its competitionThat relationship business segmentatio
41、n involves prohibition of business enterprise value, simply said, an enterprises assets include tangible assets and intangible assets, but the value of an enterprise is far greater than the tangible assets and intangible assets value sum. This is the horse in the bankruptcy law theory, namely the su
42、m a living value is far greater than the value of all parts of the horse. The organic combination of tangible assets and intangible assets of enterprises is called “business“. Mr. Xie? That “business“ has two meanings: one is the subjective meaning, refers to the business activities, which is for th
43、e purpose of profit and continuous and plan, the same type of activity (behavior); one is objective meaning, refers to the business of all kinds of property, all property is organized for business activities with well formed in business activities in the value of the relationship between the fact th
44、at. The business itself shall have its independent value, as Mr. Shi Shangkuan considers it to be an independent property, subject to the transfer. Therefore, in the process of splitting the enterprise or transferring part of the business, if the part of the business can be continued to operate, it
45、is the choice to maximize the value of the enterprise.Business has independent value, business is transferredIt is an important form of realizing its value. Because of the conflict and adjustment of the interests of all parties involved in the process of business transfer, there are many special reg
46、ulations in foreign law. All kinds of conflicts of interests in the business transfer mainly reflects the competition between the transferor and the transferee, the duty of prohibition of business strife plays an important role in the transfer of business, all of the assignors competition such as Ja
47、pan, Italy and South Korea, China Macao and other prohibited obligations made clear.Theoretically, the duty of non competition is prohibitedAccording to the obligations arising from different, can be divided into statutory non competition obligations and promissory non competition obligations. The s
48、tatutory duty of prohibition of business strife is the law specific subject shall not engage in the subject and have a certain relationship of competition between business behavior; non compete agreement is a contract specific obligations at a specific time and region and agreed not to engage in the
49、 main competition business through the contract behavior. Japanese commercial law has a history of hundreds of years for the transfer of business and the obligation of non competition. However, in theory, the nature of the obligation is bound to produce the opposition between “say“ and “legal obligation“,The former holds that the duty of non competition is the inevitable outcome of the transfer of business, while the latter advocates that the obligation is specially stipulated by law for the purpose of realizing some policy purpose. Whether it
