The Study Of The Obligation Of Non-competition For Company Senior Executive

With the expansion of the modern company and the diversification of the company's equity,the company's ownership and control right have evolved into two relatively independent parts.The company's governance model has gradually evolved from centralized management of shareholders to centralized management of the board of directors,and the board of directors has become the body of corporate governance.When the company's owner no longer manages the company's daily operations,professional managers come into being,and as their control right in the company continues to increase,and competition behaviors occur frequently.Therefore,the modern corporate system research has focused on supervision of corporate senior managers.There are few legal provisions concerning the prohibition of corporate senior manager competition in China.Most of them are in the provisions of Articles 147,148 and 216 of the Company Law.These legal provisions mainly stipulate the loyalty and diligence obligations of the company's directors,supervisors and senior managers,as well as the general non-competition obligations.These legal provisions also cite the obligations and scope of the prohibition of senior management's competition,which are not so practical,and the scope of obligations also varies.Besides the provisions of the Company Law,the non-competition obligations of corporate senior managers are more or less reflected in other laws and regulations,but overall,the content and scope of these provisions are relatively simple,not uniform and mutually conflict.There are no specific operational rules that can be implemented.For example,there is a dispute over whether the supervisory board that supervises the company's board of directorsand managers and inspects the company's finances is also a subject of non-competition obligations;the time limit for non-competition obligations is blank and the regional scope is vague;the standard of "similar business" cannot be determined;the identification criteria of usurping company's opportunities are different;the waiver procedures of corporate senior managers' non-competition are missing;how to exercise the right to join and the right to claim damages when the two rights are overlapped,and the non-cohesion of company law and criminal law when applicable.Thus,we have no unified guidance to solve problems in practice,which leads to frequent occurrence of different judgments in the judicial trial.Therefore,the improvement of the relevant legal system is even more urgent.This thesis will start from solving the practical problems,based on theories,make an in-depth analysis of the concept,theoretical basis and constituent elements of non-competition of corporate senior managers,and make comparison of current status of domestic and foreign legislation.Combined with the practical cases,I will make my suggestions,in order to benefit the system construction and judicial practice of non-competition of corporate senior managers.In addition to the abstract,the introduction,and the conclusion,this thesis is divided into four chapters:The first chapter is to summarize the legislative status of non-competition system of corporate senior managers in China,and select several typical precedents in judicial practice,and then analyze deficiencies and shortcomings of non-competition system of corporate senior managers reflected in the current situation of China's legislation and judicial practice.The second chapter is to introduce the concept of non-competition and non-competition of corporate senior managers,and analyze the theoretical basis from the economic and legal point of view,and provide a theoretical basis for the improvement of the system of non-competition of corporate senior managers.The third chapter is to comparatively analyze the current situation of the foreign legislation on non-competition of corporate senior managers,and suggest that we should learn from the legislative experience of civil law countries,especially Germany,to regulate the concept,object,scope,compensation,duration and other matters related to non-competition of corporate senior managers,and to formulate uniform and strict rules of operation for the standard of judging;Or we should learn from the experience in the jurisprudence of The Anglo-American court to strengthenthe role of the court in judicial practice,and improve the relief system of non-competition of corporate senior managers,in order to achieve the unity of the application of the law and the balance of interestsThe fourth chapter is to provide suggestions on improvement of non-competition of corporate senior managers.According to the relevant theory and legislative status quo combined with the practical cases,it is proposed to broaden the subject scope of non-competition of corporate senior managers,determine the subject qualification of supervisors and other responsible persons in key positions,clarify the scope of similar business and self-employment and being employed by others in the law,clarify the usurpation of company opportunities as a specific content of non-competition of corporate senior managers or as one of the criteria for judging whether a senior manager violates non-competition obligations,clarify non-competition obligations after a senior manager resigns,and clarify the operating procedures of the exemption system and the relief measures of non-competition of corporate senior managers,in order to benefit the system construction and judicial practice of non-competition of corporate senior managers.