Research On Identification Of Corporate Opportunity Rules

The standard for Identification of cooperate opportunity has been studied theoretically and implemented with summarization of cases for more than 100 years in common law system countries, and has been one of the most important legal regime regulating the directors fiduciary duty in Anglo-American Corporation law. However it is a new concept in China. It was only under 149th article fifth items of the "Company Law" in 2005 that made relative description:"without shareholders’ assembly agreement, managers should not use positions for themselves or for others seeking businesses belonging to the company". It was then been defined as faithful obligations of company directors but was not clarified company opportunity rules system. Accompanied with fast development of modern information market economy, events that company directors, shareholders, and senior management personnel usurp company commercial opportunities occur frequently. The 2005 year company law under 149th article made too simple summarization without any definition of standards for Identification of cooperate opportunity, which leads to difficulty of law implementation and arbitrary jurisdiction by judges and different jurisdictions to the same case, a significant fail in legislation in China. In view of this, it should be necessary to supplement corporate opportunity system to further improve it and to meet the needs of judicial practice.This thesis presents an in-depth study of standard for Identification of cooperate opportunity by methods of theoretical analysis* case study, situation comparison, etc., analyzes the current situation and problems in the judicial practice in China, and offers tactics to improve standard for Identification of cooperate opportunity in China. This thesis is divided into four chapters:The first one explains theory of corporate opportunity rules, and discusses definition and legal nature of the corporate opportunity.Chapter two discusses current status of the corporate opportunity standards legislation in China and problems existing in the application of Justice. The 149th fifth provision in 2005 marked the formal legislation of cooperate opportunity rule in China, but the provision is too simple and lacks involvements in the standard for Identification of cooperate opportunity that influences the application of judicial practice. In this part the deficiencies in three areas are analyzed:corporate opportunity criteria missing; the obligation was too narrow; exceptions is not clear.Chapter three introduces overseas legislative experience on standard for identification of cooperate opportunity. Around theoretical framework and system of standard for identification of cooperate opportunity, this chapter firstly introduce cases and rules from justice practice in Commonwealth national countries. Secondly we make reference to four mainstream standards for Identification of cooperate opportunity from common law system. Finally we compare legislation status of standard for Identification of cooperate opportunity from civil law system countries, Germany, Japan and South Korea.Chapter four presents concrete legislative proposals for improving the standard for Identification of cooperate opportunity in China. we draw on the advanced experience of other countries combined with the realities in China to solve the problem from the following three aspects:building standard for Identification of cooperate opportunity, expanding the scope of the obligation of the company, and improving provisions of exceptions.We hope to provide some new ideas through discussion for both progress in theory and improvement in legislation of cooperate opportunity rules in China.