The Research On The Corporate Opportunity Doctrine

Corporate Opportunity Doctrine originated from previous cases in England and American. It is an important doctrine on corporate governance in the common law. The goal of doctrine is to curb the executives diverting the corporate opportunities. Due to the rapid development of modern economy,the competition of business opportunities tends to no ending as it gains heat. Not only do corporations face the fierce struggles from rivals for business opportunities,but prevent inner executives from usurping the corporate opportunities. The Corporate Opportunity Doctrine was brought in China Corporation Law in 2005,which is a great progress of China Corporation Law. The Corporation Law provides that “Without consent of the shareholders’ meeting or shareholders’ assembly,director or senior manager shall not seek business opportunities that belong to the company for himself or any other persons by taking advantages of his powers. The income of any director or senior manager from above act in violation of the preceding paragraph shall belong to the company”. The Corporation Law is insufficient to resolve practical problems reflected in the case,like the main obligations of Corporate Opportunity Doctrine、how to affirm the corporate opportunity、are there exceptions and what are the relief system of corporate opportunity.These facts make it hard to handle the case. Therefore, this dissertation aims to solve above problems.This dissertation is functionally divided into 3 parts—Introduction,Text and Conclusion. The text consists of 4 chapters which are around the discussion about Corporate Opportunity Doctrine,including the definition of Corporate Opportunity Doctrine、the quality、the duty subjects、the judging standards and the relief system.Chapter 1 centers on the basic problems. Chapter 1 starts from the definition of business opportunity, then confirm its connotations. In present,professors have difference opinions on the nature of business opportunity. Corporate Opportunity Doctrine is different of The Non-Compete and Self-dealing Transaction doctrine,there are all belong to the duty of loyalty,thus displaying its own value.Chapter 2 is developed around the duty subjects applied to the Corporate Opportunity Doctrine. First of all,in the form of case analysis,the chapter aims to show the problems of the duty subject range,like whether controlling shareholders、supervisors、department managers should be one of the tax obligations subject to other issues. Secondly,the chapter introduces the duty subjects provisions which belong to England and American Law. Finally,the chapter submits amendments about the duty subjects range.Chapter 3 centers on the confirmative rules of the Corporate Opportunity. This chapter uses practical cases as a starting point. This essay analyzed the laws about the determination rule between the American Law and Chinese Law. After all,the article t points the Corporate Law is in dire need of completed determination rule.In Chapter 4,legal remedies are mainly discussed. This chapter introduces the legal remedies of the Corporate Opportunity Doctrine,This essay analyzed the different legal remedies between American、England、Germany and Japan. Finally,China should improve the disgorgement system which cooperates with compensation for damage to achieve the best results. At the same time,the Corporate Law shall bring in Injunction institution.