| Corporate Opportunity Doctrine,which prohibits the usurpation of the company’s business opportunity rules,is one of the most important aspects of the duty of loyalty.The company’s opportunity rules are derived from the principles of fiduciary principles of Anglo-American legal system,mainly discussing the relationship between the fiduciary duty between the directors of the company and other senior managers and shareholders.In Company Law of the People’s Republic of China in formally established the company rules,but the rule has not formed a set of perfect law system,in the judicial practice,lack of the independence of the non-compete obligation rules to distinguish,the subject of obligation is not beyond the law regulation,did not make clear a regulation company opportunity and usurp the behavior standards and lack of the proper use of the company the opportunity,make the company the opportunity for the applicable law faces many obstacles.Therefore,this article in our country about the company rules of law applicable to the obstacles,and combining with the relevant cases of 2016 to 2019,statistics,and the individual analysis of typical cases and on how to realize the localization of the rules of company the opportunity to apply is introduced into disorder and how to try to solve these obstacles are analyzed and Suggestions are put forward.This article is divided into four chapters.Chapter one intoduces the opportunity for the company rules in our countrylegislation history and the judicial application,makes a statistic analysis on the related cases of previous years,strive for overall macro grasp the opportunity for the company rules case,and the problems with the judicial practice to review and summarize the micro analysis.Chapter two talks about that in the first chapter summarizes the rules of our company the opportunity for the applicable law of obstacles as the foundation,from the perspective of rules behind the legal theory,including the nature of the company’s business opportunities in the obligation to fidelity to the qualitative and the principle of faith and interpretation,and opportunities to the company rules and of the perpetrator non-compete obligation to distinguish,with the company to any legal relationship are analyzed.Chapter three focuses on the identification standard and reasonable application of the company’s opportunity rules.In view of the common law countries already have relatively mature company rules,this article has reference significance of the applicability of standards and reasonable principles were analyzed one by one,and according to the standard of our country judicial practice situation compared with that for reasonable discussion,in order to solve the company opportunity rules applicable law obstacle reference path is put forward.Chapter four is a proposal to improve the application of the company’s opportunity rules in China.In view of the problems with the judicial practice cases pointed out in Chapter one,it is proposed to clarify the legal application boundaries of similar systems,appropriately expand the scope of subjects that violate the company’s opportunity rules,clarify the company’s opportunity recognition standards,establish a system that allows reasonable use of company opportunities,and establish Recommendations of the principle of distribution of burden of proof.This paper hope that through to our country company the opportunity to rule related cases,from set out actually,combining the relevant theories of the mainstream is analyzed,and improving Suggestions to try,so as to our country company the opportunity to rule the applicable law of feasible system localization scheme is putting forward.Because my ability is limited,many problems may stillquestionable,in this article for the combination of law and economics analysis may not be in place,but hope to be able to cause the attention of more opportunities for the company rules and research,play its due value and significance in the modern corporate governance system. |
PDF Full Text Request