China's Corporate Law System In The Non-competition And Its Application

Prohibition of business strife is a legal system in notions to prohibit the competitive activities by persons who have specific civil legal relations with specific business,such as restrictions on business,employment.Prohibition of business strife under company law makes an important role in the modern corporate governance structure.On one hand,it is conducive to the stability of the socio-economic relations and the active investment.On the other hand,it will help to protect trade secrets as well as to encourage technological innovation.Although the system is questioned by many scholars,it is still the general rules of civil law countries.In common law system,it is included in fiduciary duties.The prohibition made its first appearance in Regulations For The Implementation of The Law of The People's Republic of China on Chinese-foreign Equity Joint Ventures(hereinafter refer to Regulations For The Implementation) promulgated by the State Council in 1983,then it was written in Company Law of The People's Republic of China(hereinafter refer to Company Law) promulgated in 1993.Prohibition of business strife has been improved and developed after the company law amending in 2005.However,there are many contradictions between foreign investment law and the Company Law,such as the inconsistency of the rules in the Regulations For The Implementation and the Company Law,which caused by China's "reverse" path of foreign investment legislation.Therefore it is difficult to compromise the conflicts as well as to apply the rules.This thesis will set forth on the aforementioned problem in three parts.The first part gives a general theory of Prohibition of business strife,which contains the definition,legal foundation and system value of Prohibition of business strife.It also gives a brief analysis of the classification and the legal liability of Prohibition of business strife based on the theories and the legislation of the world.The second part deals with the system in domestic company law.Firstly,it expatiates on the framework of the system by comparing the provisions in the current Company Law and the old one,and then points out that the Shareholder's Derivative Action makes great sense to the system. Secondly,it evaluates the article in the Regulations For The Implementation.The author's opinion is that the Regulations For The Implementation characterized the "control-type" legislation of foreign investment law,however many restrictive provisions was no longer implement after the accession to the WTO.Finally,the author analyzes the conflict between the Company Law and the Regulations For The Implementation from not only the provisions but also the legal principles,then the author tries to find the root cause of the application dilemma.Part three makes a legal analysis on the cases of Danone v.Wahaha and Wahaha v.Danone which has caused wide concern recently.It spots the differences between Danone v.Wahaha and Wahaha v.Danone,it further concludes that these cases should not apply Regulations For The Implementation but Company Law under current law.