The Disgorgement Of Our Country And Suggestions

The disgorgement means, when the insiders in violation of stautoryobligations, companies can recover all the income the received. Thedisgorgement wants to solve two questions:, first, when losses in thecompanies cannot be measured or difficult to calculate, the disgorgementwill instead of the injury compensation request right, makes the specificpersonnel improper benefits as companies’ losses, and companies couldtake this part of benefits into themselves, to achieve the purpose ofmaintaining the interests of the companies. Second, if the specificpersonnel improper benefits more than the losses of companies,companies still will have this more than losses benefits, the recovery ofduty, which is reflects the legal manner about the way of companydirectors and other internal staff fails to perform the duty of loyalty,making companies as a tool of pursuing their own interests, will be punish as the way of get their improper benefits into companies. Ourcountry’s Company Law and Securities Law are both have Provisions ofdisgorgement, but disgorgement in both of two laws have someweakness about the legal person facts, the institutions which share theright and the time to making the right.This paper analyses some cases about the disgorgement, and getresult from these case, the common features present that what are thequestions about our country protect themselves and the reasons. Then,basing on the result of disgorgement cases, from the view of the way ofthe right coming truth, discuss the character of the right. There are threequestions about this part: first, some companies don’t use disgorgementto protect themselves; second, many companies use the law againstunfair competition to protect themselves; last, the shareholders don’t likeuse the disgorgement to protect their company. I think, the disgorgementis creditor right of contract. At last, there are some suggestions about our country’sdisgorgement. For example, we should make sure the nature ofdisgorgement, and so on.The disgorgement is a important part of company law, so, we mustpay attention to consummate the disgorgement of our country.