经理篡夺公司机会法律问题研究
发布时间：2018-09-11 16:23
【摘要】： 在激烈的市场竞争中,商业机会对公司的存在和发展的重要性是不言而喻的。经理是公司的代理人、代表人、高级雇员和公司机关,理应竭尽所能,在市场中寻求最有利的商业机会为公司创造收益,实现公司财富的最大化,这自然不得为己私利将本属于公司的商业机会据为己有。公司机会规则即是为了防止经理利用职务之便谋取公司的商业机会,维护公司的正当利益。我国现行公司法从英美法中引入了这一规则,规定经理负有不得篡夺公司机会的义务。但是这一规定过于抽象,在实践缺乏可操作性,不利于对法官判案提供明确的指引。公司机会的认定是公司机会理论中最重要也是令法官和学者都觉得困扰的一部分。美国先后在判例中确立了利益或期待标准、经营范围标准、公平标准和结合标准,学界提出了不少有价值的创见。由于我国的市场经济还不发达,在处理具体案件时应当借鉴英国法上的严格原则,领悟公司机会原理,结合美国法实践和理论上总结出来的多种认定标准,根据本土的实际情况来进行分析和适用。另外,为了辨别和控制经理的失信行为,有必要对经理篡夺公司机会的各种方式进行类型化分析。鉴于国有独资(控股)公司和上市公司中经理滥权行为的特殊性,在学理上应对之进行独立探讨。其后,分析这种行为具有何法律效果,对交易相对人、公司以及经理本身而言会产生什么法律效果,在此基础上畅通公司及公司股东对篡夺公司机会行为的救济渠道,归结公司失信人的民事责任。假若经理篡夺了公司的商业机会,公司可对其获得的利润行使归入权,在受到损害时可主张损害赔偿。当公司由于某种原因没有对其所遭受的侵害向侵权人提起诉讼时,股东可以自己的名义为公司的利益向法院提起诉讼。另外,股东若认为自己的权利受到了侵害,也有权直接向法院提起诉讼,要求侵权人承担法律责任。
[Abstract]:In the fierce market competition, the importance of business opportunities to the existence and development of the company is self-evident. Managers are agents, representatives, senior employees, and corporate agencies. They should do their best to find the most favorable business opportunities in the market to create revenue for the company and maximize the company's wealth. It is natural that you should not take into account the business opportunities that belong to the company for your own personal gain. Corporate opportunity rules are designed to prevent managers from taking advantage of their positions to obtain business opportunities and to safeguard the legitimate interests of the company. The present company law of our country has introduced this rule from Anglo-American law, which stipulates that the manager should not usurp the opportunity of the company. However, this provision is too abstract and lacks maneuverability in practice, which is not conducive to providing clear guidance for judges to decide a case. The recognition of corporate opportunity is the most important part of corporate opportunity theory. The United States has successively established the standard of interest or expectation, the standard of business scope, the standard of fairness and the standard of combination in its jurisprudence. As the market economy in our country is still underdeveloped, we should learn from the strict principles of British law when dealing with specific cases, comprehend the principle of company opportunity, and combine with the practice of American law and the various standards summed up in theory. According to the local actual situation to carry on the analysis and the application. In addition, in order to identify and control the manager's behavior of dishonesty, it is necessary to analyze the ways in which managers usurp the company's opportunities. In view of the particularity of managers' abuse of power in wholly state-owned (holding) companies and listed companies, it should be discussed independently theoretically. Then, it analyzes the legal effect of this kind of behavior, and what legal effect will it have on the relative party of the transaction, the company and the manager itself, on the basis of which the relief channels of the company and its shareholders to usurp the opportunity of the company are unblocked. The civil liability of the dishonest person in the company. If the manager usurps the business opportunity of the company, the company may exercise the right of subordination over the profits it earns, and may claim damages in the event of injury. When a company for some reason does not bring an action against the infringer, the shareholder may bring a lawsuit in court in his own name for the benefit of the company. In addition, if shareholders believe that their rights have been infringed, they have the right to bring a lawsuit directly to the court, demanding that the infringer bear legal responsibility.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
本文编号：2237204
[Abstract]:In the fierce market competition, the importance of business opportunities to the existence and development of the company is self-evident. Managers are agents, representatives, senior employees, and corporate agencies. They should do their best to find the most favorable business opportunities in the market to create revenue for the company and maximize the company's wealth. It is natural that you should not take into account the business opportunities that belong to the company for your own personal gain. Corporate opportunity rules are designed to prevent managers from taking advantage of their positions to obtain business opportunities and to safeguard the legitimate interests of the company. The present company law of our country has introduced this rule from Anglo-American law, which stipulates that the manager should not usurp the opportunity of the company. However, this provision is too abstract and lacks maneuverability in practice, which is not conducive to providing clear guidance for judges to decide a case. The recognition of corporate opportunity is the most important part of corporate opportunity theory. The United States has successively established the standard of interest or expectation, the standard of business scope, the standard of fairness and the standard of combination in its jurisprudence. As the market economy in our country is still underdeveloped, we should learn from the strict principles of British law when dealing with specific cases, comprehend the principle of company opportunity, and combine with the practice of American law and the various standards summed up in theory. According to the local actual situation to carry on the analysis and the application. In addition, in order to identify and control the manager's behavior of dishonesty, it is necessary to analyze the ways in which managers usurp the company's opportunities. In view of the particularity of managers' abuse of power in wholly state-owned (holding) companies and listed companies, it should be discussed independently theoretically. Then, it analyzes the legal effect of this kind of behavior, and what legal effect will it have on the relative party of the transaction, the company and the manager itself, on the basis of which the relief channels of the company and its shareholders to usurp the opportunity of the company are unblocked. The civil liability of the dishonest person in the company. If the manager usurps the business opportunity of the company, the company may exercise the right of subordination over the profits it earns, and may claim damages in the event of injury. When a company for some reason does not bring an action against the infringer, the shareholder may bring a lawsuit in court in his own name for the benefit of the company. In addition, if shareholders believe that their rights have been infringed, they have the right to bring a lawsuit directly to the court, demanding that the infringer bear legal responsibility.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
【引证文献】
相关硕士学位论文 前2条
1 梁婷;董事竞业禁止制度研究[D];山西财经大学;2012年
2 舒颖;公司机会规则研究[D];湖南师范大学;2012年
，本文编号：2237204
本文链接：https://www.wllwen.com/falvlunwen/gongsifalunwen/2237204.html
