The Improvement Of The Theory Of Our Country Company The Opportunity To Rule

Due to the inherent value, business opportunities become one of the main objectives of the inter-company competition to win. However, at present, the company’s business opportunities are frequently faced with danger of capture from internal management personnel. In order to regulate such behavior, on the basis of summing up the long-term judicial practice Anglo-American case law developed the Corporate Opportunity Doctrine. In recent years, the civil law countries have gradually the trend of introducing this rule. We introduced the Corporate Opportunity Doctrine roughly when our Company Law was amended in2005. But because of the limited legislative level, there are many shortcomings in the concrete application and the rule has not yet formed a complete system, so it needs to be further improved. Based on the situation, this paper makes the improvement of the Corporate Opportunity Doctrine in our country as the starting and ending points and studies on some related issues.This paper uses a variety of legal research methods such as comparative analysis method, empirical analysis method and logical analysis method, firstly describes the general theory of the Corporate Opportunity Doctrine, and then analyzes the present situation and legal problems of this rule in our country, and next introduces the Corporate Opportunity Doctrine of common law, finally puts forward suggestions combined with China’s actual conditions on the basis of learning from foreign legislative experience. Besides the introduction and conclusion, this paper contains four chapters.Chapter One discusses the basic theory of the Corporate Opportunity Doctrine. Firstly the paper introduces the concept of the Corporate Opportunity Doctrine, and then analyzes the theoretical basis of the rule from the two angles of economics and law. Then, the paper elaborates the concept of corporate opportunity and discusses its legal nature. The last part is the brief introduction to the origin and development of the Corporate Opportunity Doctrine in common law countries, as well as the situation of introduction by civil law countries.Chapter Two analyzes the legislative status of Corporate Opportunity Doctrine and its problems in the application. As early as2005before the amendment of The Company Law, seeds of the Corporate Opportunity Doctrine have emerged in China. The Article149of The Company Law marks that the rule has been established in our country. However, there are problems in the legislative and judicial level, which affects the application of the rule to a certain extent. For the rule itself, the inadequacies are mainly in four areas:the definition of corporate opportunities and corporate opportunity tests are missing; the scope of the main obligations is too narrow; the exceptions are not clear enough; the relief measures are not perfect.Chapter Three describes the legislative experience of foreign companies about the Corporate Opportunity Doctrine. This chapter focuses on the institutional system and the theoretical framework of this rule and does investigation and research on the Corporate Opportunity Doctrine in the common law with aims to learn from and draw on the advanced legislative experience. The content arrangement of this chapter makes the application of the Corporate Opportunity Doctrine as focal point, in turn discusses the company opportunity tests, the main obligations, the exceptions, and the legal remedies for the violation of the rule.Chapter Four puts forward the specific legislative proposals to improve the Corporate Opportunity Doctrine. This chapter is the core part of the full text. Under the inspiration of the advanced foreign legislative experience, we should improve the Corporate Opportunity Doctrine in many ways with considering our country’s actual situation. Specifically, it refers to the following four aspects:establish the definition of corporate opportunity and corporate opportunity tests, expand the scope of the main obligations, clear the exceptions, sound the relief mechanism. Through discourse, the author hopes to provide some new ideas to the progress of theories and the perfection of the legislation in our country.