Study On Disgorgement System In The Vision Of Corporate Law

The securities law and the corporate law in China all have the corresponding provisions on the disgorgement system. The research of disgorgement system on educational circles is mainly focus on the short-term trading behavior of securities law, and has acquired a more comprehensive and systematic research. By comparison, the disgorgement under the corporate law, both in the legislation or in the academic field are slightly weak, and lack of systematic and practical operability. In judicial practice, the corporate law regarding the specific laws applicable to the case of disgorgement is too rough, many concepts are not clearly defined, so we have difficulties in practical operation, the parties often choose other more conservative remedy measures and avoid the application, resulting in judicial cases of the disgorgement are quite rare, and the relevant statutes of the disgorgement of corporation become a mere formality. The purpose of this article is intended to define the concept of disgorgement in corporate law, to refine its characteristics, to clarify its nature, to deeply analyze the theoretical foundation, and to pave the way for doing legal research approach of it. And analysis of the disgorgement is focus on the main applicable law cases, and the status and shortage of practical exercise, refining and summarizes its shortcomings and obstacles, at the same time, borrowing the advanced international experience in local legal environment,providing full theoretical basis and institutional framework for the improvement of the disgorgement system in corporate law.This paper is divided into three parts:Introduction, body and conclusion. The body includes three chapters, the first is an overview of the disgorgement of corporation. The paper is based on the concept of disgorgement of corporation as a starting point to explain legal characteristics, clearly define legal nature, make assessment about the pros and cons to the nature of the right of formation, the right of claims, the compromise said,and it is identified as a particular creditor claims. In the perspective of duty of loyalty, it expounds and analyzes the theoretical basis of the disgorgement to provide theoretical support for the legislation and practice.The second chapter of the first quarter, Under the present situation of the rule of law,Comprehensive comparison of common law system and civil law system applies with respect to the specific circumstances of the company disgorgement provisions, to deeply analyze specific legal applicable types of the disgorgement in Chinese corporate law 148, and summarize its ubiquitous legal predicament. This paper argues that the various legal types in company law should be further refined, and define the relevant legal concepts, improve its operability. The second section of the second chapter is combined with the background of foreign law and the domestic judicial practice, positively analyses the present exercise situation and the deficiency of the company disgorgement system, and strive to achieve new innovations and breakthroughs here.The third chapter is to continue to the second chapter. In view of the defects in application of law and exercising system of the disgorgement of corporation, it puts forward the system architecture and legislative suggestions. At the same time, the main body of the disgorgement should be expanded to the board of supervisors; Its exercise object should be expanded to supervisors, stakeholders, and large shareholders; Exercise should be more flexible and rich hierarchy, The litigation, non-litigation and supplement program should be fully integrated and combined individual case to be applicable, in order to improve their operational practices; While the exercise period should be established on the basis of the legal attribute of it, according to the Civil Procedure Law about the provisions on the general limitation of action, namely the statute of limitations of two years, in order to protect the interests of all parties. In addition, the paper makes the research into disposing of the disgorgement and the claim for damage compensation of competing, to fully improve the efficiency and convenience in exercising the right, making the disgorgement of corporation more practical and feasible on application of law and judicial remedy.