A Study On The Action Of Disgorgement

Disgorgement is a right for company to withdraw the illegal income when specific subject in violation of statutory obligations . In essence , it is a remedy method to prevent the specific subject from harming the interests of the company.Disgorgement as an institution could be found in the securities exchange act of 1933 of the United States first. As the socialist market economy increasing in China, it's necessary to maintain the internal stability and prevent the special subject from abusing privileges and injuring the interests of the company. So disgorgement was established in the company law promulgated in 1993. However, the whole environment of market economic system in China is still on the process of reforming and advising and there are so many problems in the legislation. All of these factors make disgorgement can not play an important role in reality. Therefore, according to the legal theory, it's necessary to change something in order to realize progress in becoming more formal in the field of legislation.Based on studying the existing legislation, we find many problems as prosecution reason, litigation claims scope, subject system, limitation of action. For example, prosecution reason mentioned is too general, lack of maneuverability; the scope for subject can not satisfy real need, and the lack of specific standards for identity makes some difficulties.The existence of all there stuffs are unable to embody the fairness and justice principles of the allocation of the burden, also cause the law enforcement on the low efficiency, etc.For the problems above, we can try to change from the following aspects: First, the prosecution premise should have reasonable division according to the actual circumstance ; Second, for scope of litigation claims , the concept of "income" and "interests" should be explicated ; Third, enlarging the scope of parties, strengthening the recognition of a person status, also we must establish the procedure for shareholders' derivative right; Finally, the problem on burden of persuasion and limitation of action should respect the realistic environment as litigation, balance the interests between the company and the specific subject sued to realize the real fusion.