| In our company law, regulations of the duty of compulsory statutory prohibition ofbusiness strife, includes the provisions of "Company law" article seventieth, regulations aboutthe wholly state-owned company chairman, vice chairman, board of directors, seniormanagement staff of the prohibition of business strife duty,regulations about the companydirectors, senior management personnel of the prohibition of business strife duty In thesecond half of The first section of fifth part of "Company law"149th paragraph.Because ofthe regulations about the company directors, senior management personnel of the prohibitionof business strife duty in the second half of The first section of fifth part of "Company law"149th paragraph covers all the non wholly state-owned company, which is more typical, so inthis paper, this part is the focus of selection of cases and the legal analysis.As a case analysisreport, this paper uses a case leads to the related problems, combined with a detailed caseanalysis of the problem, at the end, do some thinking about the legal enlightenment broughtby the case and the relevant analysis. At the end of it, I think about the Legal Enlightenmentbrought by the case and the relevant analysis.The first part of this article is introduction about Beijing Jingyu Tianhe computersoftware technology Co., Ltd.(hereinafter referred to as the Jingyu Tianhe) and the Wenqiusheng, the prohibition of business strife and infringing trade secret appeal.Wen qiusheng,as a director of Jingyu Tianhe from September22th,2006,and as a shareholder of JingyuTianhe,in the case of not resigned from the board, sign labor contract with Beijing ExtechTechnology Co., Ltd.(hereinafter referred to as the Extech) and served as a technicalconsultant in August12th,2008.TheWen qiusheng send the information to some directors ofJingyu Tianhe by the way of mobile phone short message and email sent, which aboutresigning from the board in September26th,2006.Jingyu Tianhe believes that,afore-mentioned act of the Wen qiusheng does not constitute a resignation,therefore, sue theWen qiusheng to the court.The second part of this article is detailed analysis of the dispute about the case. The firstmajor problem is whether the act of Wen qiusheng constitutes a similar businessmanagement.According to the interpretation of the law，analysis of the legislative purpose ofthe company directors of the compulsory statutory prohibition of business strife duty, so we can get the judgment standard of the scope of prohibition of business strife duty, finally wecan get the conclusion of the first major problem.The second major problem is whether theWen qiusheng had resigned from the board already in September26th,2008.Through theanalysis of the relationship between directors and company，we can defines its properties, thusdiscuss the application for resignation of the director, whom should put forward and when iteffects, finally we can get the conclusion of the second major problem.The third major problem is the legal implications of the case. From analysis the case, wecan receive some legal implications and pass judgment on the conduct of each side.This majoranalysis the absence of law of directors, supervisors, senior management personnel to resignwithout program requirements, and the fuzzy standards of“the same kind of business”maylead to adverse effect of law.then analysis the risk of directors/senior management personnelmay exist act against prohibition of business strife duty,and the company may at risk if don’ttimely prosecution the director’s act against prohibition of business strife duty,thusrecognizing potential loopholes or blanks in the law, clarify legal strategy gains and losses ofeach side, and provides methods to risk discovery and prevention, in order to improve thelegal practice and enlightenment the reflection on the legal practice. |
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