A Study On The Perfection Of The Non-competition System Of Chinese Company Law

The prohibition of competition,also known as the restriction of competition and avoidance of competition,is a way taken by a company in order to protect its interests.It has been hundreds of years since it came into being.The study of non-competition system in foreign countries started earlier,and after a long time of precipitation,a relatively complete system of non-competition protection has been formed.In our country,the legal provisions on non-competition are mainly stipulated in the company law,labor law and labor contract law as well as judicial interpretation.However,this article mainly studies the system of prohibition of business strife in the view of company law.With the rapid development of market economy and the high concentration of capital,the ownership and management of a company are separated into two relatively independent parts,which makes the company's main activities and relevant important information in the hands of directors and senior managers who have the right to operate the company.Their movements will be directly reflected.Ring the company's operation,future and destiny.In this case,how to ensure that directors and senior managers can fulfill their responsibilities,loyalty to the company,has become more and more important.Modern company law establishes that directors,supervisors and senior managers have strict duty of loyalty to the company through legislation.Among them,the duty of non-competition is a derivative of the duty of loyalty,which is established to avoid directors and senior managers by virtue of their own status and position to obtain private interests,in order to achieve the purpose of protecting the interests of the company.As the level of social productivity continues to improve,the market competition is becoming increasingly fierce,non-competition has become one of the essential elements of today's companies and enterprises,its scope of application continues to expand,is an important legal means to protect the interests of companies.However,due to the complication and diversification of corporate governance problems,the current legislative norms of non-competition prohibition in China are a bit pale and can not adapt to the rapid economic development trend.Based on such a foundation,this article analyzes and analyzes the system of prohibition of business strife in the company law.This article is mainly divided into four parts.The first part is an overview of the non-competition system,including its concept,characteristics,classification,theoretical basis,as well as the differences between the non-competition system under the vision of the Company Law and the Labor Law,hoping to have a comprehensive and overall understanding of the non-competition system from a macro perspective,and from the company law and the labor law.In the comparison of the two angles,we have a deeper understanding of the system of prohibition of business strife in the company law.At the same time,the author also put forward his own understanding of the concept of "prohibition of competition":directors and senior managers of the prohibition of competition,refers to the provisions of the company law or the articles of association,without the approval of the shareholders' meeting or shareholders' meeting,they can not engage in business with the company in which they work competitive business.The second part focuses on the legislative status and legislation of prohibition of business strife in China's company law.Shortcomings in the law.From the first incorporation of the non-competition system into the company law in 1993 to Articles 69,148 and 149 of the Company Law in 13 years,the system of non-competition in the company law of our country has undergone a change from absolute prohibition to strict restriction.In the case of more detailed and specific provisions,there are still many shortcomings,such as the narrow scope of the main body,unclear boundaries with the rules of the bus union,weak operability of relief measures.This part is a deeper understanding of the system of prohibition of business strife under corporate law,which can be perfected only when the problem is recognized.The third part mainly introduces how the United States,Britain,Germany and Japan regulate the non-competition system.For example,the United States and Britain mainly regulate the non-competition of directors through the company opportunity rules,and have formed a relatively complete protection system.While Germany and Japan stipulate the non-competition system in the law directly in the form of legislation,at the same time,they also absorb the theory of corporate opportunity rules in the Anglo-American legal system.The author believes that the regulation of non-competition prohibition system in foreign countries has a strong guiding significance to the improvement of relevant laws in China.The fourth part is the author's reflection on the shortcomings of China's non-competition system in the process of law application,based on China's national conditions,and on the basis of absorbing foreign experience,on the improvement of China's company law non-competition system of several suggestions:First,the supervisor will be included in the main body of non-competition,to broaden the scope of the main body.Second,in order to better clarify the objective composition of non-competition obligations,it is necessary to clarify the concept of"self-operation or management for others" and the scope of "similar business";third,to determine the time and geographical scope of the non-competition system to enhance applicability;fourth,to distinguish between non-competition and driver's Association rules,corporate aircraft.Fifth,through the concretization of the approval organ and the approval procedure,the procedure of "consent" is clarified to enhance the operability of the exemption conditions;sixth,the application period of the right of attribution system is clarified,the reasonable compensation rules are determined,and the injunction system is introduced to improve the relief measures.