A Research On The System Of Prohibition Of Business Strife In Our Country

The system of prohibition of business strife is set up by law to protect the interests of the company from being damaged by the improper behavior of the insiders.This paper based on the field of company law study the prohibition of business strife of directors and senior managers in China.The system of prohibition of business in the field of company law belongs to the duty of loyalty of directors,which originated in western countries.In the long process of legislative development,the regulations in western countries have become thorough.However,in China,it was established in 1993 when the company law was promulgated.Among the five modifications of the company law,the system of prohibition of business strife was only modified once in 2005 and has been used up to now.In the current judicial practice,there are many cases of directors,senior managers and even supervisors who have not been included in the legislation to carry out acts that damage the interests of the company,but the judgment results are often different.It can be seen that the system of prohibition of business in the field of company law in China should be improved in many aspects,such as the scope of subject,the scope of object,the scope of responsibility and the distinction between the system and the similar system,in order to solve the difficulties faced by judicial practice.The paper researches the system of prohibition of business strife in the field of company law in China through the following four parts:In the first part,analyzes the system of prohibition of business strife in the field of company law from the theoretical point of view.Through the analysis of the definition and legal characteristics,the paper understands the subject,object and content requirements of the system of prohibition of business strife,and then combines the categories and the significance of establishing the system to have a preliminary understanding of this system;the second part,the author investigates the legislative status and experience of the system of prohibition of business strife of company law in England,America,Germany and Japan.British and American provide a good model to distinguish the system of prohibition of business strife and the company opportunity rule;German provides certain enlightenment to China on the scope of "similar business";German and Hitachi both provide the time limit of the disgorgement,which is also an important part of the perfection of our legislation;the third part,the author summarizes the current situation of legislation of the system of prohibition of business strife in the field of company law and the problems such as: the scope of main body needs to be expanded,the boundary with the company's opportunity rules is unclear,there is no clear recognition standard for the competitive behavior,there is no restriction on the behavior of directors and senior managers after they leave the company,and the remedy measures for the violation of the system of prohibition of business strife are not perfect;the fourth part,aiming at the problems in the third part,puts forward feasible suggestions for future legislation.For example: to include supervisors as the subject of obligation;to distinguish the system of prohibition of business strife and the company's opportunity rules through the change of legal provisions and with the help of the specific provisions of judicial interpretation;to clarify the recognition standards of the competition behavior;to increase the provisions on the competition behavior of the resigned directors and senior managers;to refine the rules of the disgorgement and its concurrence with the right of claim for damages.