1. Begin with the information, not the job title
Article 24 of the Labor Contract Law limits the personnel subject to non-compete restrictions to senior management, senior technical personnel and others with confidentiality obligations. A title such as manager or specialist is not a substitute for understanding what the person actually knows and accesses.
Article 13 of SPC Interpretation (II) supports a request to find a non-compete clause ineffective where the employee has not known or accessed the employer’s trade secrets or IP-related confidential matters. Identify the relevant categories, who owns or controls them, access permissions and the work through which this employee encountered them. Do not include the confidential material itself in an initial public inquiry.
2. Match scope, geography and duration to the legitimate need
The same article addresses restrictions whose scope, territory or duration is disproportionate to the information known or accessed: the excessive part may be held invalid. A list of every global competitor, all group industries and every country should not be used without explaining its connection to the individual employee and protected business interests.
Article 24 sets a maximum of two years for post-employment restrictions. That ceiling is not a recommendation to use two years in every case. Consider the commercial life of the information, the actual competing activities and whether narrower terms would meet the protective purpose. Keep the reason for the chosen restriction in the review file.
3. Distinguish in-employment duties from post-employment restrictions
Article 14 of the 2025 interpretation addresses in-employment non-compete clauses for the specified senior or confidentiality-bound personnel. It does not support invalidity merely on the grounds that such a clause cannot be agreed during employment or that separate economic compensation has not been paid. That rule should not be transplanted into a post-employment restriction.
Article 23 of the Labor Contract Law provides for monthly economic compensation during the post-employment non-compete period. Review the agreed amount, payment mechanics, commencement and any release arrangements with the applicable rules. A payroll instruction that stops ordinary wages does not by itself establish how non-compete compensation will be paid.
4. Assess enforcement against the complete record
Article 15 of SPC Interpretation (II) supports, for breach of a valid restriction, an employer’s agreed claims for repayment of compensation already paid and contractual damages. The word valid matters: the company should not begin with the penalty figure and assume that every signed restriction will be enforced in full.
Preserve the agreement and amendments, evidence of confidential access, payment records, departure communications and lawful evidence of the alleged competing activity. Distinguish suspicion from verified facts. Whether conduct breaches the actual clause is a separate question from whether a new employer appears on a broad competitor list.
5. Keep confidentiality protection operating independently
Non-compete clauses do not replace access controls, confidentiality agreements and an orderly return-of-property process. Review who can export customer or technical information, what records are retained and how access is removed on departure. Use lawful, proportionate evidence preservation rather than accessing a former employee’s private accounts.
For an initial review, identify the employee’s role, information categories, existing clause, departure date, compensation history and the suspected competing activity. These facts allow the work to be scoped as drafting, a pre-departure assessment or a dispute response rather than treating every matter as immediate litigation.
Legal sources
Official sources · Checked 2026-09-20. English explanations are summaries, not official translations.
- PRC Labor Contract Law (2012 amendment) ↗
Articles 23–25.
- SPC Interpretation (II) on Labor Disputes, Fa Shi [2025] No. 12 ↗
Articles 13–15; effective 1 September 2025.
General information about mainland China. The facts, applicable dates and local rules require individual review.
Partner, Beijing ChangAn Law Firm
China-qualified since 2019 · Beijing & Shenzhen
Review a China non-compete arrangement
Start with the role, restricted activity, departure date and payment position, without disclosing the protected information in the first message.
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