Legal Research On Obligation Of Non-competiton Of Directors

Modern corporate governance is changing from "shareholder centralism" to "board centralism".The directors have the company's management rights and business decision-making power,and grasp the company's business secrets,business information and other unique resources.Once the directors use the benefits to operate competing activities for their own interests,the company will suffer tangible benefits loss or face potential competitive threat.The development of the theory of the non-competition obligation of directors and the gradual incorporation of the normative system of the law is to prevent the above-mentioned moral hazard of the directors and to balance the interests of the company and the directors.The non-competition system has originated from the agency system in the civil law of western countries to regulate the behavior of agents.Later,the scope of its application has also been extended to directors in the field of corporate law,forming a unique non-competition system.The non-competition system has a full development in the common law system and civil law countries.However,it is in the initial stage in our country.China's 1993 company law provided for the absolute non-competition obligation of directors.2005 company law amended it to the relative non-competition obligation of the directors,which stipulated that the directors were not allowed to engage in competitive activities in principle,except with the consent of the shareholders' meeting.2013 company law continues that provision.China's non-competition system is not perfect.There are still many theoretical and practical controversy on the subject.This article will combine the domestic and foreign theoretical research,legislative situation and judicial practice,make an in-depth and comprehensive analysis and demonstration,try to clarify the relevant issues and put forward the relevant recommendations.This article includes four chapters:The first chapter is an overview of the non-competition obligation of directors.This chapter first introduces the concept and types of the non-competition obligation of the directors.Secondly,the author analyzes the constituent elements of the non-competition obligation of directors from the point of view of how to judge the non-competition behavior.At last,the author analyses the theoretical basis of the non-competition obligation of directors.The second chapter is the present situation and the problems of the legislation of non-competition obligation of directors in our country.This chapter summarizes the laws,administrative regulations and other normative documents,and combines with the judicial case,and then points out the existing problems.There are several problems: there are controversies in the legal definition standard of directors' competitive activities.The right of disgorgement is lack of provisions.There is not a clear regulation about how to exercise the right of disgorgement and the right to claim compensation,and the non-competition obligation of directors who leaves his post.The third chapter is a comparative study of the non-competition obligation of directors.This chapter summarizes the legislation and judicial situation of common law system and civil law system in some countries and regions.It is hoped to provide some inspiration for legislative and judicial perfection in our country by learning experience from other countries.The fourth chapter is the thinking and suggestion of the non-competition obligation of directors in our country.It will put forward perfect suggestions through summarizing the shortcomings of our country and learning experience from other countries.First,it clarifies the legal definition standards of directors' competitive activities.Secondly,it improves the system of the right of disgorgement including nature,subject and time limit.Thirdly,it perfects relative rules about operating the right of disgorgement and the right to claim compensation at the same time.Fourthly,it perfects relative rules about the non-competition obligation of directors who leaves his post.The author thinks that it can not directly apply the relevant legal norms of labor law,but should be based on the company law,and it should be adjusted with legal model and the contract model at the same time.