Research On The Perfection Of The Corporate Opportunity Doctrine In China

Corporate opportunity doctrine is an important rule developed in British and American countries on the basis of plenty of judicial precedent. In British and American national company law, it is an important part of duty of loyalty. The main purpose of set up corporate opportunity doctrine is to rule directors who want to usurp the opportunity, so as to better protect the interests of the company.In the UK, corporate opportunity doctrine was derived from fiduciary duties of the trustee of Equity. The British think company managers such as directors are the trustee of the company, so corporate opportunity doctrine in British law is very rigorous. When identifying corporate opportunity, it only considers identity factors without considering the actor’s subjective status and the possibility of use of the opportunity. It argues that as long as the company’s trustee took advantage of the company’s business opportunity is usurped the corporate opportunity. In contrast to British identifying standards of corporate opportunity, which is mechanical and rigorous, American identifying standards of corporate opportunity is variety. It formed a variety of identifying standards of corporate opportunity in a series of classic cases of judicial trial. For corporate opportunity doctrine, British and American countries have lots of different understanding, such as Britain and America have different laws to identifying corporate opportunity and reasonable use of the important part of the two corporate opportunity doctrines.There is no corporate opportunity doctrine in the tradition of the continental law system. For a long time, non-competition doctrine is considered correspondence to corporate opportunity doctrine. Gradually, people find that it is not closely coincident between non-competition doctrine and corporate opportunity doctrine. Corporate opportunity doctrine has its own independent value. In addition, as the high speed development of today’s world economy, the company grows stronger and stronger. And the governance structure has changed. Its center changed from the board of shareholders to the board of directors, the board of director began to taking more and more rights. Meanwhile, the shareholders’supervision to the director is not in place, and with the shareholders and directors on the grasp of the company’s information also exist obvious asymmetry. Due to these factors, the risk of usurping corporate opportunity increased. In order to protect the interests of the company better, from the nineties of the last century, continental law system countries such as Japan, and Germany started to bring in corporate opportunity doctrine. In2005, our country also brings in this doctrine by revising the Company Law. But the regulation of our country legislation of the rules is very rough, lacking of operability, and there’s lots of deficiency in both theory and practice. Corporate opportunity doctrine in China is difficult to play its value in judicial practice. The managers, like director, also lose their head when come across corporate opportunity, because the corporate opportunity doctrine could not guide their behavior. There are two purposes of this paper, one the one hand, to promote the application of corporate opportunity doctrine, to better safeguard the interests of the company. On the other hand, to provide managers such as directors with more explicit behavior guidance, so as to better regulate their behavior.This paper uses comparative analysis, case analysis and other methods. Under the precondition of take advanced experience from Britain and America, putting forward some perfect suggestions to the corporate opportunity doctrine of our country.The article is divided into three parts, introduction, main body and conclusion, in which the main body is divided into three chapters.In Chapter one, the present situation and the insufficiency of corporate opportunity doctrine in China are expounded and analyzed. First, it generalized the early legislation and the current legislation about corporate opportunity doctrine in China, pointed out corporate opportunity doctrine bud in the early days in China, and set aside a certain space for corporate opportunity doctrine in our country. But at the same time, there were lots of insufficient in law about corporate opportunity doctrine, such as the level of corresponding provisions is low, the scope of adjustment is narrow. Then, it analyzes the existing doctrine about corporate opportunity, and points out its doctrine is too simple and principle. Then, it analyzes the application of corporate opportunity doctrine in judicial practice in our country, pointing out that there are few cases and little using of corporate opportunity doctrine in our country. What’s more, it analyzes the causes of this phenomenon. Finally, it summarizes some specific problems which is about identifying standards and reasonable utilization of corporate opportunity doctrine in our country.In chapter two, corporate opportunity theory is introduced and analyzed, combined with the case in Anglo-American countries. First, it introduces the identifying standards of corporate opportunity in Britain and America, and the British think the trustee has responsibility of fiduciary duties, so it is rigorous on identifying corporate opportunity. Then, the author introduces a variety of judicial precedent and academic standard of identifying corporate opportunity in America, analyzes and summarizes the advantages and disadvantages of various identifying standards. And then, the author introduces and analyzes the exceptional cases of corporate opportunity doctrine in Anglo-American countries. In this part, the author expounds how to use corporate opportunity doctrine reasonably from logical implication and process condition. Finally, the author, combining the situation of our country, analyzes the enlightenment, which Anglo-America corporate opportunity doctrine had on our country.In chapter three, the author puts forward some suggestions on how to perfect corporate opportunity doctrine in our country. The author thinks that the first step is to expand the application subject of corporate opportunity. As to the object system, the author thinks that our own corporate opportunity identifying standard should be established, which is suitable for our national conditions. As to the exceptional situation of corporate opportunity doctrine, the author thinks that we can learn from the Anglo-American countries, specifying under what circumstances corporate opportunity can be reasonable used. While utilizing the approval procedure of corporate opportunity reasonably, the author suggests that the board of directors shall be brought into the company organization of approving corporate opportunity reasonably. In terms of responsibility system, the author thinks that we should learn from foreign legislative regulations, specifying the body of executing and the period of executing of disgorgement.In the concluding part, the main idea of the article is announced, that we should establish our own corporate opportunity identifying standards, combining with the scope standards of business and the abusing standards of right in America. As to the subject aspects of corporate opportunity doctrine, the supervisors and controlling shareholders can be brought into the exceptional situation of perfecting corporate opportunity doctrine, and the board of directors should be brought into the company organization of approving corporate opportunity reasonably. As to the responsibility system, adding related regulations to the body of executing and the period of executing of disgorgement.Compared with the previous research, this paper has two piece of progress, putting forward corporate opportunity identifying standards explicitly and putting forward perfect proposal on how to utilize corporate opportunity reasonably, which combined with national conditions of our country.A deficiency of this article also has two points, one is that the Angle of the theory on the analysis of the corporate opportunity is not thorough, the other is the lack of related cases and empirical research in judicial practice of our country.In addition, the applicable subject of corporate opportunity doctrine is not only the director. However, the corporate opportunity doctrine originated in a series of judicial cases of directors who usurp corporate opportunity. And the establishing of corporate opportunity aims at preventing the directors-thie main obligation subject from usurping corporate opportunity. Therefore, except the discussing of corporate opportunity doctrine in Chapter Three, for the sake of convenience, in other Chapters, the author takes the director as an example to discuss.