Research On Identification Of Corporate Opportunities

Corporate opportunities doctrine is an important part of the duty of loyalty of directors and senior managers in Anglo-American company laws.China transplanted this rule when amending the Company Law in 2005,but the relevant articles did not define what corporate opportunity is.Identifying corporate opportunities is the first and core step in applying the corporate opportunity doctrine,so the evasion of company law in defining corporate opportunities may lead to confusion in the application of rules.Through sorting out the cases,we can find that judicial practice has accumulated some experience in identifying corporate opportunities,but the existing problems are very obvious.In order to solve the problems of judicial practice,we should reasonably learn from the relevant experience of identifying corporate opportunities in Anglo-American case law.Also we need understood the nature of corporate opportunities and the benefit measurement in identification of corporate opportunities.To solve the problems of identification in corporate opportunities,we should attach importance to the function of corporate opportunity doctrine and establish a method of identifying corporate opportunities with equal emphasis on sharing rules and distinguishing rules in judicial practice.In terms of sharing rules,the positive identification criteria of corporate opportunities are job elements and scope of business activities.Negative exclusion factors include the company's ability,the willingness of the company and the third party,and the "disclosure-approval" procedure.In terms of distinguishing rules,public companies are not allowed to limit the scope of corporate opportunities in the form of articles of association,resolutions,contracts,etc.,and the approval procedures for directors and senior management to take advantage of opportunities should be stricter;for non-public companies,the situation is reversed.The first part of the dissertation briefly introduced corporate opportunities doctrine and raised the question: how to identify corporate opportunities? The second part observes the current situation of judicial identification of corporate opportunities in China through case-study methods.Through analysis,we can find that there are two problems.Firstly,the judicial practice circles have certain differences on the identification standard,and the related identification elements are very fragmented.Secondly,the logic for identifying corporate opportunities is not clear,and each single identification standard or element has not yet been constructed as an system rule.The third part deeply introduces the experience of comparative law,and there are obvious differences in identifying corporate opportunity between Britain and America.With noconflict and no-profit approach,the scope of British corporate opportunity is relatively broad.With ownership approach,American case law has developed systematic positive and negative identification rules,and the scope of corporate opportunity is relatively narrow.The fourth part analyzed two main ideas for correctly identifying the corporate opportunities.First,it must be recognized that the corporate opportunities are different from the civil rights or objects in traditional civil law system.It is a new type of commercial interest with value,uncertainty,and relativity.In addition,the identification of corporate opportunities has the function of measuring benefits,so to construct reasonable identification rules,it is necessary to master the identification intensity of corporate opportunities.The fifth part carries on the analysis of the fourth part and puts forward suggestions for improvement of China's corporate opportunity identification rules,that is,constructing sharing rules and distinguishing rules.