Research On Judicial Application Of Company's Right Of Return

China's "Company Law" has been amended since it was promulgated and implemented in 1993.It has undergone a process of transition from a planned economy to a market economy.It has undergone several changes in the company's business format,and some previously uncommon corporate disputes are increasing.On the issue of the company's right to belong,although China's "Company Law" and "Securities Law" have corresponding provisions,but the legislation is too principled,does not form an operational system,lacks the specific value of guiding practice,it is difficult to adapt to the present Some judicial practice needs.This paper explores a case involving the right of company in judicial practice.It aims to explore the problems existing in the practice of judicial trial in the practice of corporate justice in the case of case-based entry,trying to make recommendations for judicial trial activities and the right to participate.Theoretical research provides meager strength.The first part is the introduction.Through the introduction of the concept of the company's right to belong and the introduction of the law,the problems arising from the judicial practice lead to problems,mainly the timeliness,the review standards and the prohibition of competition and the identity judgment of directors and senior executives.The second part is the case introduction.Through the introduction of the first-instance,second-instance and appeal of HJ case,the background of the case and the introduction of derivative litigation,the dispute between the trial and the substantive trial encountered by the company in the judicial application process and the company's return are introduced.The right to judge the standard dispute,which leads to the following.The third part is the historical evolution and doctrine of the company's right to belong.The company's right to infringe originally originated in the US securities trading,in order to prevent directors,managers and major shareholders from using a special status to seek private interests in stock trading,damage the interests of investors,and disrupt the market order.Subsequent legislative trends were formed around the world.Its theoretical basis comes from modern company theory and trust theory.The academic community has roughly four views on the legal nature of the company's right to belong.The author agrees with the claims.The fourth part decomposes and analyzes the specific content of the company's right of ownership system and the problems in judicial practice.Of course,the company's right to belong to the company is the company,the subrogation body is the shareholder's representative,the company,the company's non-action shareholders and the shareholders who are subject to the right to be classified,can become the subject of litigation of the company's right of ownership.According to different petitions,the company's right of litigation can be divided into two major types of cases: damage to the company's interests and disputes,and company resolution disputes.When the litigation effect of the company's right of return is clear,the author believes that the time limit for ordinary civil action should be three years,and the protection period of up to five years should be set.The third part also made a preliminary analysis of the scale of judicial review and the judicial review standards applicable to non-competition.The fifth part analyzes and judges the problems in the judicial practice that are more controversial or difficult to identify,and puts forward the author's personal suggestions.Regarding the dispute over the case,judicial practice has responded by the trichotomy of the Judicial Interpretation IV of the Company Law.Regarding the scale of review,the author believes that considering the judicial review of the company's right of ownership will not have too much impact on market efficiency,so it should be based on the principle of substantive examination based on the pursuit of fair value orientation.Regarding the prohibition of competition,the author believes that the maximum period of prohibition should not be more than two years after leaving the position of directors and senior executives;and the judgment of business opportunities should be judged by combining the scope of business scope,expectation or expectation of interest standards,and fairness standards.And pay attention to the characteristics of unity and confidentiality.Regarding "self-employment",it should be based on actual control and influence.With regard to the identification of directors and senior executives,there should be both formal and substantive elements.The sixth part is the conclusion.As a summary,it makes a prospect for the judicial application of the company's right to return.