The Judgment Dilemma And Institutional Reflection On The Corporate Opportunity Rule In China

The Company Law of the people's Republic of China(hereinafter referred to as "the Company Law")amended in 2005,in Article 149,paragraph 1(5),introduced the company opportunity doctrine of the Anglo-American legal system for the first time.There are still many problems in related theoretical research and judicial practice.On the one hand,the company opportunity doctrine and non-competition prohibition systems under the loyalty obligations are stipulated together,which leads to the confusion in judicial practice.On the other hand,Chinese legislative and judicial authorities lack a deep understanding of the core legislative objectives of the company's interests.As a result,the standard of identification of corporate opportunities in practice is too high,and the legal liability for violating the company opportunity doctrine is falsified,eventually resulting in The consequences of the company's interests are not fully protected.The first reason is that the current legislation in China has formally introduced the company opportunity doctrine of the Anglo-American case law,but lacks detailed regulations on the specific issues of the company opportunity doctrine,especially the so-called "company interests".The second reason is that the "Company Law" stipulates the company opportunity doctrine together with the non-competition system so that the court doesn't distinguish the company opportunity doctrine from the noncompetition system in the law application,but apply prohibition systems without any distinction to avoid the direct application of the company opportunity doctrine.Therefore,in practice,the court generally ignored the recognition of the opportunity to seize the company,and the company opportunity doctrine became a piece of paper.This paper clarifies their respective boundaries,characteristics and their relationship between the company opportunity doctrine and the noncompetition system,and discusses the connotation of the company's interests to be protected by the company opportunity doctrine,and puts forward the perfect suggestions for the judicial application of company opportunity doctrine in China.This paper argues that China's company opportunity doctrine compared with the non-competition system,it focuses on regulating the specific trading behavior.Therefore,there are two general situations in which the company opportunity doctrine are applied.One is that although the actor violates both the non-competition system and the company opportunity doctrine at the same time,there exists a specific transaction or a business opportunity.Second,the actor usurps the opportunity of the company by means other than engaging in competitive activities.Meanwhile,this paper proposes to adopt the criteria for avoiding conflicts of interest when identifying the company's opportunities,moderately reduce the plaintiff's burden of proof,and extend the scope of the right to claim and damages to the defendant's expected income and the loss of the plaintiff's expected interest,to fully play the role of the company opportunity doctrine.