Research On Judicial Application Of Corporate Opportunity Doctrine In China

Corporate opportunity doctrine originated from the Anglo-American law system,which established the specific obligation of directors,senior management and other company trustees not to usurp corporate opportunities,and is one of the specific contents of the duty of loyalty.The rule was formally established in China in 2005,and is now stipulated in item 5 of article 149,paragraph 1,of the “Company Law of the People's Republic of China”(amended in 2005):“directors and senior managers shall not seek business opportunities that belong to the company for themselves or others by taking advantage of their positions without the consent of the shareholders' meeting or the general meeting of shareholders.” It is undeniable that the introduction of this doctrine is a major innovation in China's company law legislation.However,in the past fifteen years,our country 's legislation on the doctrine is still in its infancy,and the content of its provisions has not changed compared with 2005,which is very simple.Due to the lack of legislation,the application of corporate opportunity doctrine in judicial trials in China is not optimistic.There are some practical problems such as the dispute of the scope of the subject of obligation,the vague standard for the determination of company opportunities,and the unclear reasons for the defense.Therefore,it is necessary to further clarify and solve the above practical problems in order to better apply the corporate opportunity doctrine and give full play to the functions of the doctrine to protect the interests of the company.In terms of the scope of the subject of the corporate opportunity doctrine,China's “Company Law” restricts the subject of the doctrine to directors and senior managers,but some courts recognize the qualification of the obligation subject of department head,supervisors and controlling shareholders in specific case judgments.In the face of this conflict,it is urgent to combine the current status of judicial judgment in China and relevant theories at home and abroad to make a profound analysis of the qualification of the subject of the subject of the dispute,and strive to build a reasonable system of the subject of the obligation.Specifically,it can be constructed from two aspects: the legal obligation subject and the illegal obligation subject: for the former,it must be clear that independent directors and department heads with company management authority belong to the legal obligation subject;for the latter,it is necessary to establish the obligation subject qualification of the controlling shareholder and the supervisor.How to identify corporate opportunity is the core issue of applying corporate opportunity doctrine,and also an important issue that cannot be avoided when trying such cases.However,China's current legislation does not stipulate the criteria for the identification of corporate opportunity,which has led to large differences in the selection of specific factors for corporate opportunity,which undermines the authority and seriousness of judicial decisions.Therefore,it is very important to construct a unified determination standard through judicial interpretation.The specific construction method can be divided into two steps: first,comparative analysis of the legislative and judicial practices of the United Kingdom and the United States,and the establishment of the US model based on business opportunity ownership as the construction model of China's company opportunity recognition standard;second,on the basis of determining the identification model,specific identification factors are identified,including whether the business opportunities are mature,whether the business opportunities are created by the company,and whether the business opportunities are related to the company's business activities.In addition,in judicial practice,the defendant often raises three reasons as “the company has no operating capacity”,“the company gives up the opportunity”,and “the opportunity provider refuses to cooperate with the company” as a defense.From a legislative point of view,the above three causes are not statutory defense reasons and should not be supported,but our judicial practice has basically recognized the legitimacy and validity of the above three defense reasons.In this regard,there is an urgent need to clarify the specific content of the reasons for the defense of the company 's opportunity rules through judicial interpretations to enhance the certainty and operability of the law.The specific recommendations are as follows: First,the reason for the company 's abandonment of the defense should be recognized based on the logic of “the company no longer belongs to the company after giving up the opportunity”;The incapacity and opportunity providers refuse these two reasons as defense.