Prohibition System Of Corporate Opportunity Usurpation Doctrine

Usurpation of corporate opportunity is that the company directors or other senior management positions to facilitate the use of themselves or others seeking belongs to a company’s future trading opportunities, which include the company’s trading opportunities and expectations vested interests. Corporate opportunity as the intangible property status has become an important factor for business development, the opportunity is also the expectant right enjoy by the company. Directors or other senior managers, however, breach of the duty of loyalty to usurp the company’s business opportunity for personal gain that often occurs, damaged the interests of the company is not conducive to the healthy development of the market economy. How to restrict the behavior of the directors or other senior management has now become an important proposition in the theoretical study of Corporate Law. The new "Corporate Law" Article148and Article149, paragraph5, of the fiduciary duty of directors or other senior management and must not usurp a corporate opportunity to make roughly provisions, but its content is too rough, so directors usurped Company system of the opportunity to prohibit the introduction of Law in China is inevitable, it is necessary to study and improve the opportunities system suitable for China’s national conditions. Firstly, determine the obligations of corporate opportunity usurpation prohibition, usurpation of corporate opportunity prohibition is one of the fiduciary duty of directors and other senior managers, directors or other senior management personnel shall not use his position to use the opportunity that the company has interests or expectation interests in it. Secondly, determine the standard of corporate opportunities’affirmation, that the corporate opportunity has to meet three conditions:a director or other senior managers of the use of his position to obtain, in accordance with the duty of loyalty and duty of care to disclose to the company, with the company’s operating activities are closely related. Thirdly, determine the judicial relief for usurpation of corporate opportunity behavior in order to protect the interests of the infringement. Finally, based on the company owns the right to give up the corporate opportunity, then in this premise, the director or other senior managers can take advantage of opportunity, need ideas to make reasonable use of the opportunity system, determine the prerequisite for rational use of the opportunities of the company, the company to give up the corporate opportunity of voting procedures, as well as the power of final decision of the board of directors or the shareholders all. In this fully develop the corporate opportunity usurpation prohibition system.