| The Company law adds company opportunity rules that the director or senior manager can’t usurp company opportunity, which improve relevant laws and regulations on the duty of loyalty to the company law. However, there are many deficiencies, which leading to too difficult to apply in practice because of the limited legislative level.Company opportunity rules gradually formed and come to perfection in the Anglo-American case law. In the Anglo-American Company law, company opportunity rule is the manifestation of the directors or senior managers’duty of loyalty to the company and inevitable result of separation modern corporate ownership from management rights. Company opportunity for enterprise to bring the possibility of a property interest, the non-material form is determined by the company the opportunity can be classified as the category of intangible property and to protect it; About company opportunity rights attribute, the academic has yet, but the norm of the companies is to determine opportunities, available, can give enterprise to bring the interests of the entities in the future, so the company opportunity defined as expectations right will provide the guarantee on the civil law. Company opportunities by qualitative for the company’s intangible assets and are looking forward to the nature of the right to determine the directors and senior management personnel shall be the obligation of fidelity to the adherence to the bottom line, will not belong to the company to capitalize on business opportunities, to seek its own interests.The premise and foundation of the company opportunity rules is judging which business opportunities belonging to the company. American judicial practice and theoretical circle gradually formed a variety of judgment standard. In company law practice, formed the interests and look forward to the standard, business scope, fairness and Minnesota test; In theoretical circle, there is American law institute and professor Clark opportunities identified on the company. But in the united relationship between standards is not replace each other, on the contrary, all kinds of judgment standards influence each other, gradually improve. Similar to the United States, the commonwealth countries opportunity judgment standard for the company also produces in jurisprudence and gets development and perfection in the judicial precedents. Theory, the director or senior manager may usurp company applicable principles of chance is the company’s rules, but all things have principle there will be exceptions, British and American corporate law think that when companies for commercial opportunities to volunteer to give up, can’t use or up in the air, the directors and senior managers can reasonable use the company’s business opportunities without the need to assume responsibility.Although the mainland legal system of company law on the directors and the company relations are different from British and American corporate law, the directors, senior management needs to bear the duty of loyalty to the company content basically the same, so the company opportunity rules in continental law system countries such as Germany, Japan, South Korea remains applicable soil, establish rules on company opportunities in China’s corporation law also reflects the trend of the legislation to protect company business opportunities. Although company opportunity rule was established in the company law, but share the same with the non-compete clause without clear standards, resulting in the judicial practice of usurping corporate opportunity cases identified by non-compete, there is no chance reason to determine directly to usurp company directors, senior management personnel illegal case. Throughout our country about company opportunities rules and judicial practice, we can find problems about identification standard of usurpation in the compulsory subject, specific standards, information disclosure, and agreed to organs. So the improvement of company opportunity rules need three aspects, including complete the main obligations, specifically identified standards and rational use of the company’s opportunities. |
