| Article 148 of the Company Law stipulates that the income earned by directors and senior executives by breaching the duty of loyalty shall be owned by the company.The rule that the income which shall be owned by the company is supposed to be introduced from the Disgorgement of Corporation in the Common law system,but theses rules are not equivalent.Since the Company Law of China does not give a clear definition and tittle for the rule of article148 of the company law,many academic believe that its legal basis can extracted from the principle of good faith in civil law,but there is no more theory exploring the rule of article 148 of the company law more deeply.And because Article 149 of the Company Law also stipulates the liability of damages of directors and senior executives for violating the law and the articles of association of the subject company,when the directors and senior executives of the subject company violate the article 148 and article 149 at the same time,how do we apply those two articles?This requires analysis of the the definitions of the rule of article 148 and article 149,and then we can draw conclusions.This dissertation does not discuss the issue of corporate governance which may be involved in the article 148 and article 149 of the Company Law.It is only focused on the function and characteristics of the rule of article 148 of the company and how itrelates to the article 149 of the company law.This paper attempts to establish a standard for the choice of the two laws for the fair relief of the interests of the company as a damaged party.In addition to the introduction and conclusion,this paper is separated into six parts.The first part analyzes the nature of the duty of loyalty of the directors and senior executives.A comparative analysis of the duty of loyalty in the common law system and the characteristics of the duty of loyalty in the practice of the company law in China,so as to find a relatively close legal relationship with article 148 of the company law.It is found that there is no judicial interpretation of the duty of loyalty at the normative level,so the principle of good faith can only be applied as the theoretical basis for the current duty of loyalty of directors and senior executives in China.The second part mainly analyzes the nature of the“Responsibility”of Article 148 of the “ Company Law ”.Comparing the Anglo-American law as the most primitive source of "incorporation" and the "Taiwan Regional Corporation Law" on the "right of belonging",it is found that the "right of belonging" is more in line with the interpretation of China's legal norm system.This section focuses on the introduction of the "right to belong" in the "Taiwan Regional Corporation Law",because it has not only provisions for exercising the right to "return to the right",but also for the period of exercise,so from the perspective of rights interpretation More comprehensive.Finally,we should also find out the shortcomings of the "Company Law of Taiwan" on the interpretation of "the right to belong" and find out the possible problems to avoid the irrational reference of this article.The third part will start with the introduction of judicial judgments in which the article 148 of the company law is applied,and then analyze the meaning of thedisgorgement under article 148 of the company law in the judicial precedents.It is found that there are three ways to interpret the meaning of disgorgement under article148 of the company law:punitive measures,legal claims and infringement damages Among them,infringement damages is a theory supported by most judicial precedents.Furthermore,the focus is on whether the Supreme Court has a clear attitude to which way to interpret the meaning of disgorgement under article 148 of the company law.Unfortunately,the attitude of the supreme court toward the definition of article 148 of the company law is conservative even if it encounters cases in which article 148 of the company law will be applied.However,we have observed some subtle changes in the judgment of the Supreme Court,and that is,from simply applying principle of good faith to the beginning of to consider the application of tort liability.The fourth part mainly proposes several questions that must be answered if the article 148 of the company law is interpreted as tort liability of profit deprivation type.Starting from the two unique characteristics of the disgorgement under article148 of the company law:First,it only deprives the directors and senior executives of the profits earned through violating the duty of loyalty without depriving them of other related gains.The second is mainly aimed at the company's expected and intangible interests,and the constitution of claim under article 148 does not demand damages caused to the existing property interests.It is important to answer why other types of interpretations of article 148 cannot be a reasonable.Then It is followed by a further question:Can such non-existing property,which is expected to be a type of interest,be the subject of the tort liability?And how could the“profit deprivation”differ from the general calculation of damages?How to find theoretical support?The fifth part focuses on the theoretical obstacles to the interpretation of article148 of the company law as infringement damages,and also answers the questions raised in the fourth section,which is the core part of this article.First of all,answer the basic question: Can creditor's rights and non-existing property interests be theobject of tort liability: Firstly,from the perspective of legal norm system,explain the possibility of tort liability being applied in cases of the protection of the creditor's rights relief.There is a phenomenon that the tort liability has been exerted limited function because of the strict liability stipulated in article 121 of the contract law.Finally,based on the judicial precedents,the creditor's rights under what conditions can be abstracted as the subject of the tort liability.Then,answer the another big question:firstly,under the principle of objective imputation,the constitution of tort liability based on violation of statutory liability is the core of this principle.Based on the principle of constituting tort liability through the intermediary of violation of statutory duty,and combining the restitution and preventive function of the infringement damages,the analysis of profit deprivation damages and the traditional restitution damages in aspects of calculation method.Therefore,we find a rational basis for article 148 of the company law as profit-deprivation type infringement damages.The sixth part is to answer the core question of this article,and then discuss the relationship between Article 148 and 149 of the Company Law.In the former five sections,on the basis of the defining Article 148 as the damages for infringement liability,we will analysis how those two types of damages will be applied in an a reasonable way.First,article 149 of the company law has been determined to fulfill the composition of general damages in accordance with the Supreme Court's point of view,but it is clear that it cannot be directly equated with the faulty tort liability.Secondly,after draw a conclusion that article 149 and article 148 of the company law are statutory damages,the combination of the two is based on the principle of general damages. |
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