裁判思维下的公司机会原则——以《公司法》第149条为中心

On Doctrine of Corporate Opportunity in the Juridical Thinking Pattern——Focusing on Article 149 of the Corporate Law of PRC

公司机会原则的适用主体总体上可以准确地界定为董事、高级管理人员和控股股东,不包括监事和独立董事。公司机会的认定取决于是否源于职务便利获取,而不应限定为是否在执行职务过程中获取。公司机会原则与竞业禁止存在竞合,但是两者又各有不同,不应将二者混淆。公司机会原则与保密义务存在牵连,需要分清。违反公司机会原则,公司享有归入权和损害赔偿请求权。特定情形下,公司可以向机会提供的第三人索赔。

The doctrine of corporate opportunity can be applied as a whole to directors, senior executives and controlling shareholders excluding monitors and independent directors. The corporate opportunity should be defined as being obtained by taking advantage of one position and not limited to exercising one＇ s duty. The doctrine of corporate opportunity overlaps that of no competing with corporate to some extent, but the difference should not be overlooked. There are close relations between the doctrine of corporate opportunity and the obligation of confidentiality, which should also be clearly defined. In violation of the doctrine of corporate opportunity, the corporation enjoys the right of forfeiting and claiming for damages. In particular circumstances, the corporation can claim rights to the third party who offered the corporate opportunity.