On The Application Conditions Of The Corporate Opportunity Doctrine

This dissertation focuses on the application conditions of thecorporate opportunity doctrine, mainly discussing what conditions arerequired when judges try to apply this doctrine. The corporate opportunitydoctrine originated in the Common Law countries, which is one of thedirectors’ duties of loyalty. Later, the corporate opportunity doctrine wereaccepted by the Civil Law countries and brought in. After learning othercountries for their advanced results of legislation, the amendments ofCompany Law of China in2005set up the corporate opportunity doctrinefor the first time. However, there was no this doctrine in China’s CompanyLaw before, and it has not been brought in for a long time, the domesticresearch based on this doctrine is relatively weak. Besides, the newCompany Law only provides for the corporate opportunity doctrine inprinciple, and the provisions are relatively crude, especially on the issue ofthe application conditions, which will inevitably leads to disputes injudicial practice. So clearly defining the application conditions of thecorporate opportunity doctrine can not only compensate for the researchgap in law theory, but also make construction to the judicial practice bydirecting judges to apply the rule correctly. For these reasons, this articlebases on the legislations and cases in the Common Law countries, andlearn their advanced experience in order to establish the applicable modeof the corporate opportunity doctrine in our country. Then it continues tomake a separate analysis on each of the conditions. Finally, the article makes a comparison with the domestic legislation, point out somelegislative defects and put forward some sound recommendations, in thehope of providing some valuable reference for the company lawamendments in the future and the judicial practice.Except the production and the conclusion, there are four chapters inthis dissertation. The specific content of each chapter is arranged asfollow:The first chapter introduces the basic theory of the corporateopportunity doctrine, including the meaning and the theoretical base ofthis doctrine. This chapter aims to provide a theoretical basis for theanalysis of this article behind.The second chapter focuses on the comparative law. It introduces twodifferent modes on the application of the corporate opportunity doctrine,which are represented by the English and American case law. Thenaccording to China’s actual conditions, it sets up a new mode appropriatefor our country by learning from reasonable elements in two modes.The third chapter summarizes up three elements to apply thecorporate opportunity doctrine on the basis of the second chapter, whichare the element of subject, the element of object and the element ofbehavior. Then it makes a fine-grained analysis on these three elements.Because there are some controversies on these three elements in judicialpractice, this chapter will make a discussion and state my personal opinionon these controversies.The forth chapter reviews the legislation on the corporate opportunitydoctrine in China’s company law, then points out some legislative defectsand put forward some sound recommendations.