Research On The Issues Of The Disgorgement

The regulations about disgorgement were created in the United States at first, although the USA is a common law country, it has the most advanced securities law in the whole world. The disgorgement means, when the insiders in violation of statutory obligations, companies can recover all the income they received. Company Law and Securities Law are both have provisions of disgorgement, but disgorgement in both of laws has a difference on subject of rights and duties, the legal facts applicable, the exercise conditions, income sources and preceding obligation. The direct legal certificate of disgorgement is fiduciary duty, the fundamental legal certificate is the principle of good faith. The nature of disgorgement should be the debt claims, and it is based on statutory debt.The disgorgement includes the prohibition, short-term trading, self-dealing and corporate opportunity, what is more, Chinese "Company Law" also stipulates that the other usage, such as acts of misappropriation of company funds, loan company funds to others and to provide guarantees for others.The objects of disgorgement can be divided into two categories:First, the company's directors, supervisors and senior managements; Second, the shareholders which holds certain percentage of share. There is also the beneficiary. The subject of disgorgement should be diverse, when the board of directors and shareholders are unavailable, the board of supervisors should be classified to exercise the right in order to protect the interests of the company. The conditions of the disgorgement are:the subjective fault is not considered, there is a specific breach of statutory duty of loyalty behavior, the behavior of breach of statutory obligations has bright actual profit, a causal relationship between the specific behavior and the actual profit. The way of exercise for disgorgement is litigation. The disgorgement includes two procedures:the general procedure and the special one. General procedure is divided into two steps:resolution and litigation. Special procedure is the shareholder derivative litigation. The exercise period of the disgorgement is related with its nature, this paper argues that the nature of disgorgement should be the debt claims. Therefore, the statute of limitation should apply to the exercise period of disgorgement, in general,it should be two years.The objects provided in "Company Law" Article 149 is too narrow. Supervisor should be controlling, and the shareholders and actual controllers as well as the beneficial owner are objects into the regulation range. Board of Directors as a permanent organ of the company has the right to represent the Company to exercises the disgorgement. But our "Company Law" does not require board of Supervisors on whether or not to exercise the disgorgement. Our law does not clearly defined the nature of the disgorgement or its deadline, this is a lack of legislation. The disgorgement statute of limitations should apply, the time is appropriate as 2 years. Meanwhile, the starting point of the period can be calculated from gain the profit. For the problem of concurrence between disgorgement and the right of claiming for damages, our legislation should adopted overlap mode.