Research On The Judgment Criteria Of Corporate Opportunity

With the development of market economy,the business opportunity of a company has become an indispensable resource for the survival and development of a company because of its huge economic value.In the face of corporate business opportunities,the choice conflict between seeking the maximization of personal interests and safeguarding the professional ethics of corporate interests has intensified Preventing and Regulating Insider usurping the Business Opportunity of the Company the requirement of judicial application of the Company Opportunity Rule has been increasing since it was formally introduced into the legislative scope of the Company Law of our country in 2005.As the logical premise of the application of corporate opportunity rules,the judgment standard of corporate opportunity has been controversial in academic circles.At the same time,due to the lack of specific legal norms,the judgment views on the judgment standard in judicial practice are different from each other.Therefore,this paper analyzes the attributes of corporate opportunity from different perspectives of corporate law,economics and competition law through the problems existing in the theory,legislation and judicial application of corporate opportunity rules.On the basis of comparing the standards of corporate opportunity judgment under the British and American case law,this paper puts forward the construction of the standard system of corporate opportunity judgment in line with the actual situation of our country,and puts forward some suggestions on the specific elements of the standard.There are four chapters in this paper,which are discussed from the following aspects:The first chapter is the reflection on the current situation of the application of corporate opportunity rule in China.The three parts of this chapter reflect on the application of corporate opportunity rules in China from three dimensions: theoretical legislation to judicial application.On the basis of sorting out the controversial viewpoints in academic circles and analyzing the legislative gaps,this paper summarizes the judicial judgment viewpoints in recent ten years,summarizes the problems existing in the practice of company law in China,such as ambiguous understanding of corporate opportunities,confusion of investigation factors and unclear judgment logic,and tries to switch the perspective of competition law to investigate the judgment standard of corporate opportunities as a reference for constructing the judgment standard system of corporate opportunities.The second chapter is the theoretical analysis of corporate opportunity.This chapter focus on analyzing the attributes of corporate opportunities from the perspective of economy and jurisprudence.The first part uses the method of law and economics to deduce the benefit essence of corporate opportunity from the aspects of agency cost and transaction cost,the economic effect of reducing agency cost by corporate opportunity rule and the influence of "business scope" and "specific investment" on corporate opportunity.In the second part,starting from the basis of opportunity,right,attribute and duty of loyalty,we introduce the path of competition law and discuss the legal basis of corporate opportunity from two aspects of competitive advantage and business ethics.The third chapter is the investigation of the standard of corporate opportunity identification in comparative law.The first part is the summary of corporate opportunity judgment standard in case law,and the judgment standard in American and British case law is investigated.The second part is about the standard of corporate opportunity judgment in statute law.The author chooses the standard of corporate opportunity judgment in common law system and civil law system as the object of study.The second part is the expansion of the elements of corporate opportunity identification in the new theoretical research and case law.The third part draws the enlightenment of balancing interests and considering business scope and procedural justice based on the duty of loyalty from the standard of corporate opportunity judgment in Anglo-American law.The fourth chapter is the construction of the standard of judging corporate opportunity in China.This chapter is also the core chapter of this paper.The first part discusses the concept of constructing the judgment standard of corporate opportunity rules based on the ownership of interests,the duty of loyalty as the foothold and the balance of interests as the path.The second part puts forward the framework of corporate opportunity judgment standard on the basic of the previous chapters.That is to say,the source of opportunity,the scope of business and procedural justice are the core elements,and the legitimacy of the company’s opportunity utilization under the situation of company’s inability and company’s refusal is supplemented.