| In an era of information explosion,corporate opportunities are of vital importance to companies,but it is easy for fiduciary duty holders to obtain opportunities that belong to the company by taking advantage of their dominant position,and as rational economic persons,when the interests of the company and the personal interests of the fiduciary duty holders are in conflict,they will have a great moral risk of harming the interests of the company in favour of their personal interests,so the Company Law provides for corporate opportunities rules to restrain the possible usurpation by the fiduciary obligor.China introduced the rule in 2005 when the Company Law was amended,although it has been more than ten years since its development,but because the law is very general on the rule,resulting in many problems in judicial practice,such as the application of the corporate opportunity rule to the trial logic is unclear,the identification of the standard is unclear.Therefore,this article will discuss the judicial application of the corporate opportunity rule from the following aspects,with a view to clarifying the judgment path of the corporate opportunity rule and giving suggestions to improve it,so as to enhance the certainty and operability of the law.In the first part,the origin of the problem.Through the historical development of corporate opportunity rules,the doctrinal basis of corporate opportunity rules and the common misunderstanding of corporate opportunity rules,the basic theories related to corporate opportunity rules are elaborated.Firstly,in the section on the history of corporate opportunity rules,the development of corporate opportunity rules in common law and civil law systems is briefly introduced,and the development of corporate opportunity rules in China is highlighted in detail,and it is found that there are still many areas for improvement in the regulations of corporate opportunity rules in China.Finally,by clarifying the relationship between corporate opportunity rules and non-competition rules,certain misunderstandings related to the understanding of corporate opportunity rules are clarified.In the second part,current situation and issues.In this chapter,the current situation and problems of the corporate opportunity rule in judicial practice by selecting judicial cases related to the corporate opportunity rule through the method of empirical research are analyzed.Through the collection and analysis of the cases,the current situation of the focus of controversy,the subject of rights,the subject of obligations,the way of assuming responsibility,the factors of determination and the results of judgments related to the cases of corporate opportunity rules is summarized,and the problems existing in the field of corporate opportunity rules trials in China are derived according to the above-mentioned current situation.Firstly,in terms of the subjects of the corporate opportunity rules,we analyze whether supervisors,controlling shareholders and independent directors are eligible defendants;secondly,in terms of liability,we analyze whether third party companies should be jointly and severally liable for the usurpation of corporate opportunities by fiduciary duty holders;finally,in terms of the factors to be considered in the determination of the corporate opportunity rule,the logic and criteria for the determination of the corporate opportunity rule are unclear due to the complexity and disorder of the factors.In the third part,the path of judgment is clarified.This part analyses the judgement paths of the common law system and the judgement paths of the Chinese courts,and comes up with suggestions for improving the judgement paths of the domestic courts.In this section,this article summarize the similarities,differences,advantages and disadvantages of the judgement paths of the common law system in relation to the rules of corporate opportunity,starting from no-profit principle and no-conflict principle in the UK and interest or expectancy test,line of business test,fairness test,two-step analysis,the standards of the American Law Institute and other standards in the US,and tentatively conclude that the judgement paths of the US courts are superior.Through the analysis of the domestic courts’ common judgment paths of civil tort liability and commercial legal norms,it was found that the judgment paths of China’s courts lacked independence and were more confusing.In the end,taking into account the actual situation in China and the merits of the American approach,we propose that the American principle of "ownership" should be used as a reference for our courts.In the last part,the improvement of adjudication rules.This chapter compares the current mode of "recognition of opportunity attribution" and "recognition of usurpation" applied by Chinese corporate opportunity rules with the mode of "recognition of corporate opportunity" and "can trusted obligor take advantage of corporate opportunity" applied by American corporate opportunity rules.Starting from the relationship between tort liability,duty of loyalty and corporate opportunity,this chapter analyzes why the recognition should not focus on the usurpation.Thus,a more scientific conclusion can be drawn from the American logical paradigm compared with our own.The next section analyses the identification of corporate opportunities and the exemptions from the use of corporate opportunities according to the logical paradigms of "recognition of corporate opportunities" and "whether a fiduciary can take advantage of corporate opportunities".In the part of corporate opportunity identification,the common judgment factors in the trial practice are limited,excluding irrelevant considerations;In the part of exemption from the use of corporate opportunity,it demonstrates why there are exceptions to the exercise of the corporate opportunity rule and what specific exceptions exist.Based on the first and second drafts of the revised draft of the Company Law,it is concluded that the fiduciary duty holder can only take advantage of a corporate opportunity if there are circumstances where the company agrees,the company cannot and the counterparty refuses. |
