Research On The System Of Company Incorporation Rights

The legal norms about the disgorgement mainly focus on the 148 articles of the company law and 47 articles of the securities law.With the continuous improvement of corporate governance structure,many companies begin to adopt the management mode of separation of ownership and management right.In this management mode,how to ensure directors and senior executives to abide by the duty of loyalty and prevent them from harming companies’ interests by taking advantage of their positions has become a difficult problem for sponsors.Article 147 of the company law stipulates the duty of loyalty of directors and senior executives,and article 148 of the company law stipulates the disgorgement system,which is a main remedy for breach of the duty of loyalty.The disgorgement system plays an important role in safeguarding the interests of the company,however,there are many difficulties in the practical operation.The parties would rather adopt more stable legal measures than avoid using disgorgement in the litigation This system does not make the most of it in the actual judicial trial,which leads to fewer cases related to the company’s disgorgement.This dissertation attempts to analyze the defects of the current legal system of disgorgement and the difficulties in judicial application,and propose suggestions.This dissertation firstly discusses the research background and innovation points,Then,it insists on the legal research method of empirical analysis,combining with legal norms and judicial practice,and deeply analyzes the specific cases of the company’s disgorgement in judicial practice,and indicates the focus of controversy.Subsequently,this dissertation analyzes the concept,development process and theoretical basis of the company’s disgorgement system,and further analyzes the nature of company’s disgorgement system.All of these work lays a solid theoretical foundation for the following research.Finally,according to the idea of "raising the problem--analyzing the problem--solving the problem",the main part is divided into two parts.At present,the legal provisions of the disgorgement system in thecompany law are too formalistic to guide the judicial practice.This dissertation suggests that we should recognize the independent value of disgorgement in the first place The disgorgement is different from damage claim,and they are not substitute for each other.Secondly,this dissertation expands and clarifies the objects of disgorgement by means of legal interpretation,In this way,we can solve the problem of the scope of disgorgement and definition of senior management.Thirdly,we should consummate the procedural problems of the disgorgement system by applying shareholder derivative action,and then balance the burden of proof by shifting burden of proof.Lastly,the standards for the identification of the company’s business opportunities should be clarified,so as to improve the operability of disgorgement in judicial practice.