Research On The Rule Of Disgorgement In Company Law

The rule of disgorgement in the Company Law refers to the legal rule with the content of "the income obtained by directors,supervisors and senior managers who violate the provisions of the Company Law on the duty of loyalty shall be owned by the Company",and is mainly manifested in the specific legal provisions of Article 148(2)of the current Company Law/Article 186 of the Company Law(Draft Amendment).The empirical analysist shows that the court generally agrees that the rule of disgorgement is a special form of tort in the field of company,and adopts the threelevel progressive logic of "subject-action-responsibility" in the trial of cases.However,there are great cognitive differences in the purpose and function of the rule.Such cognitive differences directly lead to more cognitive differences on the form and scope of disgorgement liability,and then lead to the uneven results of the legal application of the rule.What is the origin of the rule? What are its purpose and function? What are the constituent elements of the rule? How to determine the form and the boundary of disgorgement liability? The answer to these questions is the key to resolve the differences in trial practice and theory,and then to promote the level of interpretation in cases related to the rule.The starting point of the rule is the fiduciary relationship and duty of loyalty.Expost correction of interest conflict is the core of the rule.The rule has multiple functions of punishment,prevention and compensation.In detail,the rule is based on the violation of the duty of loyalty in the fiduciary relationship,which revolves around the core of how to correct the interest conflict between the company and its directors or senior managers afterwards,and the rule ultimately ends up with the disgorgement liability.The rule has three functions of punishment,prevention and compensation,which serve the purpose of protecting the interests of the company under the correctional justice structure.The constitutive elements of the rule include three aspects: subject elements,action elements and result elements.In detail,the subject elements refer to the applicable scope of the rule only to one who has a duty of loyalty to the company.The judgment process already formed in the practice of "adopting both form and substance,form taking precedence over substance" is worth continuing to follow.The action elements refer to the behaviour of the above subject violating the duty of loyalty.The revised version of Company Law provides more explicit guidance than before for judicial judgment.The result elements refer to the fact that income is obtained due to the violation of the duty of loyalty.The connotation of the concept "income" should not be taken as "net profit",but should be understood closely around the range of the context of the word "income" itself.The legal consequence of the rule is disgorgement liability.Disgorgement liability is a property liability caused by the violation of the duty of loyalty.The form can be unilateral sole liability or unilateral joint liability,and the subject of liability is only the one who has the duty of loyalty.The scope of liability shall be limited to the income obtained by directors and senior managers due to the violation of their duty of loyalty.The "income" refers to the personal economic benefits flowing to directors and senior managers due to their breach of duty of loyalty,which may be manifested in money,remuneration,other goods or rights to be acquired.The disgorgement liability can be determined directly,or by calculating the amount of income according to evidence,or according to the court’s discretion while facing difficulty in proving.The abuse of discretion is worth noting when determining the disgorgement liability by the court’s discretion.