| The legal system of corporation disgorgement was transplanted to the United States.As a statutory right relief method,it is regulated in Chinese Securities Law and Company Law.In the field of securities,short-term trading behaviors are mainly adjusted,while in the field of companies,the behaviors that violate the obligations of fidelity and harm the interests of the company are mainly targeted.Based on a detailed understanding of Articles 148 and 149 of the Company Law and Article 44 of the newly revised Securities Law,this article explains relevant issues through empirical analysis,legal interpretation,and comparative analysis,and systematically organizes related issues.Typical judicial cases,analyzing and summarizing different handling opinions and novel identification standards in judicial decisions.With a view to making up for the deficiencies in Chinese company law legislation,it provides theoretical and practical support for the systematic improvement of corporation disgorgement,and promotes the effective implementation of the system of corporation disgorgement in judicial practice.The thesis is divided into five parts.The first part summarizing relevant cases in China,put forward the main problems that need to be resolved in the exercise of the corporation disgorgement:the composition of the corporation disgorgement is not clear;the scope of the right of exercise of the corporation disgorgement may be too narrow;lack of certain standards;how to link the two legal systems when the corporation disgorgement and the right to claim damages are in competition.In the second part,from the perspective of theoretical discussions,legal interpretations,and extraterritorial norms,it is clear that the obligation of loyalty is the reflection of the principle of good faith in civil law in company law.The corporation disgorgement is a relief mechanism for insiders who violate the appointment contract.The constituent elements of the disgorgement are only one point,that is,the insider of the company has performed a specific act in violation of the fidelity obligation,regardless of whether the company has suffered damage or theinsider has subjectively attributable responsibilities.The third part mainly studies the exercise object of the corporation disgorgement.Differentiate whether to execute company decisions,the identification of directors and senior managers who are the executive entities should consider the role they play in the corporation operating decisions,rather than whether they have the corresponding title in isolation;Shareholders and interested parties may influence directors or collaborate with company insiders to participate in transactions related to the company indirectly through substantive control,which may infringe or threaten the interests of the company,so they should also be included in the scope of the right to exercise.The fourth part focuses on the research of the boundary that can be attributed to income.The type of attributable income corresponds to the corporation losses and lost profits.Based on the theory of causality in the scope of liability in tort liability law,equivalence is used as the initial criterion for defining attributable income.The range that can be attributed to income includes compensation for pure economic losses.When it is difficult for the company to prove that the insider has usurped the corporation opportunity,it can be classified as income based on the subject of the transaction contract,equity premium income,and industry standards.The fifth part is to solve the problem of the competition between the corporation disgorgement and the right to claim damages.It integrates the typical settlement models outside the domain,compares and analyzes the advantages and disadvantages of various models,and recommends that China adopt the alternative model and the reason is that this model is more conducive to highlighting the autonomy of private law,reducing the burden of corporate evidence,and playing a preventive and intimidating role. |
PDF Full Text Request