A Probe Into The Duty Of "Prohibition Against Usurping Company Opportunities"

The company opportunity rule originated from the Anglo-American law system,which is a product to solve the imbalance between the rights and obligations of company directors and other personnel,and to safeguard the interests of the company.It was introduced into China in 2005 when the company law was overhauled.In the past ten years,the regulation of this rule was too simple in Chinese law and there was no corresponding judicial interpretation.There are many problems in the judicial practice of our country.Such as the judicial determination of corporate opportunities;The scope of the subject of obligation;And the defense reasons of the defendant.Solving the above problems is of great significance for the better application of this rule in China.Therefore,this paper collects practice cases from 2006 to now as samples to analyze and discuss the above problems.This paper is divided into four chapters.The first chapter summarizes the relevant cases from 2006 to now,and on this basis,makes data statistics on the reference factors of the company's opportunity judicial determination,the scope of the subject of obligations,the defense reasons,the attitude of the court and other aspects.Therefore,three practical problems occurred in the application of this article were found out,and a simple data analysis was carried out on the basis of sample data.The second to fourth chapters mainly focus on the three practical problems raised in the first chapter.The second chapter mainly analyzes the reference factors in the judicial determination of company opportunities.This chapter first discusses the reference factors in the judicial practice in our country company the opportunity to justice chaotic reason,thus the author from the essential attribute of the company to the company the opportunity to should have the characteristics of the "creative" and "correlation",in the practice of and for other higher frequency reference has made the company the opportunity to join factors for analysis.The third chapter analyzes and discusses the subject of obligation of "forbidding to usurp the opportunity of the company".In view of the state that the subject of obligation in the law is limited to the directors and senior managers,other people are accused in practice,and there is great uncertainty in the determination of "senior managers".This chapter mainly discusses the judicial determination of senior management and whether the supervisor and controlling shareholder can be the subject of this obligation.The fourth chapter mainly discusses "usurpation".The first section first discusses that "company consent" should take the prior disclosure of the subject of the relevant obligations as a prerequisite,and should strictly establish the "no disclosure,no rational use" point of view;On this basis,it analyzes that "company consent" should mean that the company agrees that the director can use the opportunity of the company instead of giving up the opportunity of the company.Finally,the author analyzes what the company organization should be to make the agreement.The second section mainly discusses the problem of "taking advantage of position",firstly analyzes the meaning of "position",and then discusses the time of taking advantage of position.The third section mainly discusses the situation in which the "company cannot" is widely used as the defense in practice,which is divided into two situations:the company's finance cannot and the company's law cannot.Opportunities protect company is relatively simple,in our country law obligations created a lot of practice to apply difficulties,this paper aims to summarize the problem from practice case,combined with the existing knowledge,hope to be able to form a set of reasonable obligations apply rules,enrich our country related theory research,provide effective theoretical basis for the future of the judicial referee.