Study On The Steps And Identification Standards Of Corporate Opportunities

The corporate opportunity doctrine originated in the U.S.In 2005,China included it in Article 149,paragraph 1 of its Company Law.In 2013,the Company Law was revised and such rule was moved to in Article 148.Through preliminary research,I think this clause sets both the corporate opportunity rules and non-competition rules in Article 148,paragraph 1,item5,which is likely to cause confusion.What’s worse,this clause only makes preliminary provisions on the corporate opportunity rules,and lacks clear ideas and standards for identifying corporate opportunities.I think the current provisions about the corporate opportunity rules can no longer meet the needs of judicial practice,and it is necessary to make improvements.In my opinion,China’s Company Law should make clear provisions on the identification ideas and standards of corporate opportunities.First,in terms of form,the corporate opportunity rule and the non-competition rule should be stipulated in different clauses.Second,in terms of identification,I think a clear distinction should be made between "corporate opportunities" and "behaviors that infringe on corporate opportunities." Finally,in terms of identification standards,I propose that the statutory identification standards for company opportunities should be a supplement to the identification standards agreed by the parties,and further proposes that the company opportunities should be identified based on the parties’ agreement,and if there are no such agreements,the company opportunities should be identified in accordance with the law.The structure of the essay is:Chapter one introduces the corporate opportunity rules and its legal basis.The first section summarizes the company’s opportunity rules.The second section analyzes the proper subjects of the corporate opportunity rule.The third section analyzes the theoretical basis of corporate opportunity rules from two aspects: fiduciary duty and agency cost.The fourth section analyzes the similarities and differences between the corporate opportunity rules and the non-compete rules.Finally,Section five analyzes the nature of corporate opportunities and proposes that companies only enjoy legal interests in corporate opportunities.Chapter two conducts empirical research on domestic cases of infringement of company opportunities.First,it summarizes the current situation of the introduction of corporate opportunity rules in China and shows the flaws of the current law.Then comes the empirical studies on the judicial application of this provision.Using 394 judgment documents from2010 to 2021 as the sample,this chapter contains three sections separately about the confusion between corporate opportunity rules and noncompetition rules,corporate opportunity identification ideas,and corporate opportunity identification.Each section discusses and analyzes the structure of statistical data,statistical data analysis,and questioning,and proposes the confusion between the corporate opportunity rules and the non-competition rules in judicial practice,the lack of reasonable ideas to guide the identification of company opportunities,and the lack of clear corporate opportunity identification standards.Chapter three discusses the criteria for identifying opportunities in foreign countries.First,it introduces the relevant laws,cases and theories in the U.S.and U.K.Then it brings up that Germany doesn’t adopt corporate opportunity rules.Then it analyzes their common characteristics and development trends,and finally discusses its reference to the improvement of corporate opportunity identification standards in my country.Chapter four puts forward the identification ideas and identification standards of company opportunities.First,it is proposed that the form of legislation should separate the corporate opportunity rule and the noncompete rule in different clauses.Second,it puts forward that the company’s opportunity identification should adopt the idea of distinguishing the company’s opportunity and the behavior that infringes the company’s opportunity.Third,it analyze the conflict of interest involved in the company’s opportunity identification standard.Finally,a clearer standard for identifying company opportunities is proposed.