On Seizing Of Corporate Opportunity For The Legal Regulation

Due to the active form of modern economy, there is an obvious trend of business opportunities to be spread in a short period. As the representative of the company, directors make contact and judgment of all kinds of business information, and to promote the development of the company from the opportunity. In practice, the corporate opportunity as the role played by a new type of property in the process of sustainable development of company is more and more important, especially for some high-speed growth of small or medium-sized companies, and perhaps a corporate opportunity may determine the fate and the future of a company. However, with the power of corporate management expands increasingly, company executives to usurp company opportunity are not uncommon in commercial practice. On the one hand it is caused by the modern firm one-sided pursuit of economic profit and ignores the controls of the moral hazard problem of executives about. On the other hand another important factor is that the process of corporate governance lacks of the legal regulation of the corporate opportunity. Therefore, directors in dealing with the issue of corporate opportunity have become a new hot spot for corporate governance.The Corporate Opportunity Rules originated from the Common Law System. It is an important proposition in the English or American corporation law and it is one of the concrete manifestations of the company law requiring directors and senior managers to be loyal to the company. It is not allowed for directors and managers to usurp corporate opportunity for their own profit. Otherwise, relevant responsibility person shall return the profits to the company. The English or American law prohibits directors to usurp company opportunity and has formed rich and comprehensive rules. These rules include opportunities for the company standards, allowing directors etc. using exceptions to the corporate opportunity etc.. In addition, the legal research institutions and legal scholars of United States are also in the continuous induction and summary of existing cases, trying to illustrate these rules through a brief clear written law. These materials have become an important resource for the transplantation of laws in other countries. In recent years, the countries of Civil Law System, such as Germany and Japan, also gradually pay attention to the vitality of the corporate opportunity rules, trying to introduce the rules.By taking advantage of their positions to themselves or others to seek business opportunities, our country in the revised Company Law joined the similar corporate opportunity of the provisions in 2005. Directors and senior management personnel of the company are prohibited without the consent of the shareholders’ meeting or the general meeting of shareholders to agree. But contrast with Britain and other countries, the existing provisions of our country is too simple, which has not formed a complete system of corporate opportunity and lacks of recognized standards of corporate opportunity. Therefore, China’s current provisions on the company’s opportunities should be revised.According to the basic concept and background of the corporate opportunity doctrine of to prohibit usurping corporate opportunity on the basis of the theory, this article tries to make analysis of the legal nature of corporate opportunity, its nature as well as other similar systems. Concerned with the introduction of the corporate opportunity rule and the development of the system in United States and UK, the classic British and American case law is introduced. The corporate opportunity doctrine in Anglo American Law in the specific provisions and the comprehensive analysis and evaluation has been discussed. Through the analysis of Article 148, Subsection(5), the Company Law of the PRC, it is obviously that our current law in the corporate opportunity doctrine applicable subject, identification standard and exception provisions for the use of existing deficiencies and to solve these problems each of the amendments to the views and suggestions, to the perfect our country related company legislation, improve the level of corporate governance of our country.This paper is divided into four parts. The first part is about the basic issues of corporate opportunity rules. First of all, the concept of opportunity rules of Introduction Company and the corresponding background, the company’s opportunity rules in the common law countries and the civil law countries of the development of the status quo. The corporate opportunity were preliminary classification, trying to explain the opportunity to mature and immature opportunities, opportunities for profit and non profit opportunities and acquisition and job opportunities and individual opportunity, lay the foundation for below about the company the opportunity to further study. Secondly, through the analysis of the director and the company legal relationship demonstrated no theoretical basis of usurping corporate opportunity is a director of the company bears the duty of loyalty. Again, there are the analysis of the legal nature of the corporate opportunity and necessity through of “property” and “rights” of the analysis and the discussion about the advantages and disadvantages. In the end, the corporate opportunity identified as a new expectation interest, so as to prove the law for corporate opportunity should be given special protection and regulation of directors and executives such as subject of usurping corporate opportunity behavior. Ban usurpation of corporate opportunities and limitations of self dealing, prohibition of business strife and prohibition of the specific content of the leaked company secrets belong to the duty of loyalty, but in regulating object, composition elements, and legal consequences, there is a difference, accurate analysis of their differences, help to clarify the male driver will theory connotation and extension, below lay the research foundation.The second part is the development of corporate opportunity rules in the Common Law System, focusing on the United Kingdom and the United States in the judicial precedents set up the company’s opportunity to judge the standard. In the UK, subject to the rules of the trust, the director has maximum for the interests of the company act of duty, case has been to strict criteria to measure a chance belonging to the company, the fact that as long as there is profit for the board of directors, the obligation to return to the company, the interests. In the United States, how to identify the company’s opportunities, practical and theoretical circles exist some disputes, “real interests or expectations” standards, “scope of business” standard, “fairness” standard, “abuse of power standard” and so on the different theories. In addition, the United Kingdom and the United States, the company law also allows executives and other subjects in a certain conditions and procedures under the proper use of corporate opportunities. The determination standard of the company opportunity and the rule of exception to allow the use of the company’s opportunity have provided a reference for our country to improve the corporate opportunity rules.The third part is the current situation of China’s corporate opportunity rules. First of all, from the perspective of legislation, the specific provisions of the company law on corporate opportunity rules are analyzed. Secondly, through two specific cases, the use of corporate opportunity rules in the judicial practice. Finally, according to the legislation and judicial practice, review our country current problems, provisions including the corporate opportunity doctrine in the structure is lack of independence, the content on the applicable scope of the main body of the narrow, no standard to judge the specific provisions of the corporate opportunity, also does not require the use of an exception to the corporate opportunity, when the company the opportunity to be usurped, the company relief remains to be clarified.The fourth part is to improve the company’s corporate opportunity rules and the rules of the future to explore the rules. According to the third part of the problem, first of all, on the basis of reference to the United States and Britain, the company should determine the opportunity to determine the criteria. Secondly, aiming at the corporate opportunity subject scope and suggestions will be the controlling shareholder and actual controller, and the company’s board of supervisors, also included in the scope of corporate opportunity rules regulation. Again, it is suggested that the time limit for the exercise of the right to the right of the company to clarify the relationship between the right and the right to claim for compensation. Finally, we suggest that the company law of our country can increase the exception stipulation of the proper use of the company’s opportunity and the necessary operation procedure, and hope to improve the legislation of the company rules in our country.