The Study Of The Obligation Of Non-Competition For Company Directors

The modern company's two right separation mode causes that the director as the manager of the company has more power to control the company and win more opportunity to get the trade secret than the shareholder, engaged in the business which compete to the company's business by means of using the trade information from the company, it will damage the company's and shareholder's benefit. As a result it is necessary to regulate the provision about non-compete in order to prevent director from damaging company's and shareholder's benefit.In addition to the introduction this article is divided into five sections, about 18,000 more than words, and its main contents are as follows:The first part through a typical case of a director of China's non-compete obligations brings forward such the relevant legal issues as: (1) the question how to identify non-compete obligations of the directors, such as self-employed or for others the distinction between operators, service companies and their definition of similar operating as well as the geographical limit of time, etc;(2) the legal consequences of directors arising from violation of non-compete obligations;(3)whether or not directors can waive such non-compete obligations.The second part of the concept of restraint of directors, classification and characteristics are discussed. Through and unifies our country to the overseas some stipulation analysis "Law of corporation" related stipulation, had determined the trustee competes industry the prohibition duty concept .According to the voluntary origin, competed industry the way as well as the time to competes industry the prohibition duty to carry on the classification and to analyze the trustee from the different angle to compete industry the prohibition characteristic.The third part is an analysis of how to identify the non-compete directors to conduct, including the "self-employed business or for others," the distinction between the "representation of the company and its business similar" defined Jingye of directors of the limited geographic scope, non-compete obligations on directors to determine, such as time-boundThe fourth part is an analysis of the legal consequences in violation of obligations of non-compete directors, including criminal and civil liability that the main body of China's criminal liability should only be limited to state-owned company, enterprise directors, managers should not extend to non-state-owned companies, corporate directors and managers. Civil liability will be discussed from both internal and external aspects: the view of the external aspects that the activities of violation of non-compete, for director himself or others and for who is employed by the company competitive for the effective conduct should be identified. In the internal aspects, the company's directors could be in violation of non-compete obligations as directors do not exercise the right to request, under the right to claim damages, the right of disgorgement, the right to obtain legal relief.The fifth part is the non-compete obligations of directors from the discussion of some of the world's countries outlined in this area combined with the provisions of China's non-compete liability of directors from some of the comments.