Study On Disgorgement System In The Corporate Law

According to generalized understanding, disgorgement of corporation is an system both in the securities law and the corporate law. So far, as to disgorgement of corporation, the academia has mostly researched into it within the bound of the securities law, namely, researched into the disgorgement of insider short-swing profits, and has brought forward lots of rational theoretical opinions and legislative proposals. Contrarily speaking, researches on the disgorgement of corporation in the corporate law are of insufficiency, at least not systemic.Therefore,the article just researches on the disgorgement of corporation in the corporate law(hereinafter referred to as "disgorgement of corporation"), based on the historical analysis, comparative analysis and positive analysis. This article consists of four parts.The first part is entitled by the source and the theoretical basis of the disgorgement of corporation. This part, beginning with the cases of disgorgement of corporation at home and abroad, and integrating the source of the disgorgement of insider short-swing profits, firstly researches on the source of the disgorgement of corporation.Essentially; disgorgement of corporation comes of the corporate officials' violation of duty of loyalty which the corporate officials should bear to the company. In succession, in order to further illuminate the validity of the disgorgement of corporation, this part, based on the comparatively all round review of the relationships between company and its officials, systematically analyses the theoretical basis of the disgorgement of corporation through the perspective of trust relationship, especially through the theory of duty of loyalty and its corresponding disgorgement in trust law.The second part is entitled by the analysis of the legal character of the disgorgement of corporation. As to the legal character of the disgorgement of corporation, there are four doctrines, one regards it as a right of claim, one treats it as formative right, one deems it as both right of claim and formation,besides,the last one refers it as creditor's rights.Therefore,this part firstly arranges these four doctrines, mainly for their respective viewpoints, theory evidences and problems.Then,based on the presentations above, the author examines these four doctrines, through such two perspectives as "the choice of the right of claim and the right of formation" and "whether the disgorgement should be deemed as creditor's rights". The author thinks it is better to consider the disgorgement as a right of claim.The third part is entitled by the comparative study of disgorgement of corporation. Working from a macro-perspective, this part carries out an comparative study of disgorgements of corporation at home and abroad. Working from a micro-perspective, as to disgorgement system of corporation in our own country, the article mainly tidies up the history of the legislature of disgorgement of corporation, based on historical and longitudinal comparative analysis. as to disgorgement system of corporation abroad and in the region of Taiwan, this article carries out the research through such perspectives as "the prescriptions in counties of Anglo-American Law" and "the prescriptions in countries of continental law system and in the region of Taiwan", using the method of transverse comparative analysis.The fourth part is aimed at probing into the plights of disgorgement of corporation in application and the methods how to solve these problems. Although through several reformes in the legislation, especially the reform of corporate law in 2005, the disgorgement system of corporation in our country has improved deeply, there are still deficiencies. The author not only has no intention to but also could not disclose all the deficiencies, therefore, this part just examines the problems of disgorgement system of corporation in our county and puts forward relative measures through three perspectives, such as the scope of the subjects to whom the disgorgement of corporation is used, the cases to which the disgorgement of corporation is applied, the Concurrence of disgorgement of corporation and the right of claim for damages.