| The disgorgement is a special right of remedy given to the company by law.It is a statutory right that the company has the right to take back all the benefits when the company's directors and senior management have violated duty of loyalty to engage in several acts prohibited by law.This right protects the legitimate rights and interests of the company on the one hand,and on the other hand prevents the directors and senior managers of the company from engaging in illegal acts prohibited by law.It is important to balance the interests of the company with directors and senior management.Our country's provisions on the disgorgement have been transplanted from the common law system.It is reflected in Articles 147 and 148 of the current Company Law and Article 47 of the Securities Law,but the above provisions are too rough and simple.There is also a phenomenon of inconsistency and inconsistency among the above-mentioned laws,and the current Company Law does not make clear provisions on the nature of the disgorgement,the subject of exercise,the object of exercise,the exercise procedure,the period of exercise,and the relationship between the disgorgement and the right to damages.A number of issues have arisen in the application of justice,The above phenomenon has led to a series of problems in the disgorgement's judicial practice.Most of the existing theoretical researches focus on the disgorgement of short-term transactions under the Securities Law and only a few scholars have conducted purely theoretical research on the disgorgement under the Company Law.The combination of law and research through judicial empirical methods.However,few scholars have combined the two laws mentioned to carry out research and demonstration through judicial empirical methods.The test of the success of the design of a legal system can be judged by observing its application in judicial practice.Therefore,from the perspective of the combination of the theoretical and judicial empirical research,the author conducts a systematic review and analysis of our country's provisions on the disgorgement in order to provide new ideas for the further improvement of the provisions.This article first uses the method of legal hermeneutics to theoretically define the concept of the disgorgement,clarifies its nature as a new statutory debt,explores its theoretical basis as the director's loyalty's duty to the company,and uses a comparative analysis method to Compare the provisions on the disgorgement of a mature foreign country with the existing provisions of disgorgement of China in order to find some loopholes in the existing provisions of disgorgement of China.Author use judicial empirical research methods to sort out the relevant cases of the disgorgement,summarize the common characteristics of such cases,and then perform a type analysis on them.Finally,based on the reference of mature laws outside the region and the conclusions of judicial cases,Make suggestions for improving the existing legal requirements.First,the Company Law should clearly stipulate the board of directors,the board of supervisors and shareholders under certain conditions as the exercise subject of the disgorgement;Second,expand the exercise object of disgorgement,Stakeholders such as supervisors,directors,and senior management are defined as the exercise targets.Third,improve the exemption procedure for the exercise of the disgorgement: stipulate the information disclosure system,clarify the decision-making body for reviewing and exempting matters,and cancel the general approval procedure of the charter.fourth,introduce a group litigation system on the basis of improving the shareholder derivative litigation system;fifth,adoption Switzerland or Overlapping mode when competing for the disgorgement and the right to damages. |
PDF Full Text Request