On The Prohibition Of Usurping Corporate Opportunity

ABSTRACT:The Prohibition of Usurping Corporate Opportunity, also known as the Corporate Opportunity Doctrine, is an important legal system which has been developed based on a number of practical precedents and theoretical debate in common law countries, mainly meaning that directors and senior management personnel shall bear the obligation that they are not allowed to utilize their convenience in the corporation to obtain the commercial opportunities that belong to the corporation for making profit out of it. This system has been gradually developed and improved in the common law countries through100years of development, while in our country, when this system was introduced in2005, it filled the gaps in the legislation. But the fact that the law is relatively simple, the time is short, the theoretical basis is relatively weak, and it lacks relevant case supporting still makes it necessary for us to conduct further theoretical research.This thesis will make an inquiry on the Prohibition of Usurping Corporate Opportunity and an analysis on the existing problems in our laws and put forward suggestions for improvement by using the literature analysis, comparative study and case study method and considering the reality of China. Besides the part of Introduction and Conclusion, this thesis mainly contains four parts.Part one starts from the fundamental theory of Corporate Opportunity and analyzes its legal nature. The Corporate Opportunity can be propertilized, and can also be regarded as a new right of expectation. It also comes to a conclusion that our criteria for corporate opportunity should adopt the scope of standard, and also should pay attention to the interests of the company and the concrete analysis of concrete problems in the specific application through the common law of corporate opportunity recognized standards and the theoretical research, combined with our existing legislation and its actual conditions.Part two explicates the act "usurping" firstly, then makes further analysis on the corporate opportunity doctrine by comparing with corporation business, and solves the problem that the law in our country is limited in defining the scope of the subject of the doctrine obligation by researching the regulation of Anglo-American law on the scope of the subject of the doctrine obligation, advocating that the scope of Obligations Subjects in our forbidding usurping should extend to the controlling shareholder and the board of supervisors.Part three mainly researches and inquires how to rationally take advantage of the corporate opportunity and discusses the precondition to using the corporate opportunity, the director’s duty of disclosure, and how to make rational use of corporate opportunity in three cases:company abandons、company can not use、company does not decided.Part four mainly researches when the corporate opportunity is usurped, relief measure, namely disgorgement right and damages claim can be executed by the corporation.