Research On Director's Non-competition Obligation

Company Law of the People's Republic of China(1993)has established directors and supervisors in the corporate governance structure,which is similar to the German corporate governance structure on the surface,but the difference is that due to the limitation of our traditional ideas,supervisors are not placed above directors,so in the operation of the law,legislators gradually find that supervisors' supervisory functions can not be effectively guaranteed.So in order to balance power and balance.For the protection of minority shareholders,the company law has been amended several times and introduced the independent director system into the revised edition in 2005,which formally established the current corporate governance structure in China,namely,the coexistence of directors,supervisors and independent directors.From the current corporate governance structure and the basic course of the emergence of directors' non-competition system in China,we can see that one of the characteristics is the mixture of the unitary structure and the dualistic structure of corporate governance,and the mixture of civil law system and common law system in the design of non-competition system.This kind of mixture system with the advantages and disadvantages of using for reference,the advantage is that the design of inclusive system tends to be more rationalized;the disadvantage is that appellation can be used for system,but the background of system can not be used.When the corporate governance structure and the specific non-competition system intersect,many problems arise between the system itself and the system.This paper restores the design background of corporate governance structure and non-competition system in foreign countries through German Stock Companies Act handelsgesetzbuch(HGB)MODEL BUSINESS CORPORATION ACT(MBCA).Find the relationship between the rights and obligations of independent directors and supervisors in the initial state of their system.Comparing with directors' non-competition obligation in our country,find the legislative defects of directors' non-competition obligation in our country.These include:the content and scope of independent directors' obligation to prohibit competition are not clear,the principle of prohibiting usurpation of business opportunities not had Practical operability,difficulties in remedy for directors' Violation of the Obligation to prohibit competition,no explanation is given on the legal application of the non-competition contract for directors.After that,we should adopt an attitude similar to the legal term "right of removal",Namely,as long as the basic legal theory remains unchanged,the relationship between rights and rights should be re-established so as to make it conform to China's.Finally,four suggestions are put forward: to stipulate the obligation of prohibiting competition of independent directors separately,to expand the application of the principle of prohibiting usurpation of company opportunities,to improve the establishment of the right of compensation for damages and the right of attribution,clarify the legal application of the contract of prohibiting competition of directors.