高管的竞业限制义务-竞业限制知识大全|极兔竞调
《公司法》第一百八十条第一款规定，
“董事、监事、高级管理人员对公司负有忠实义务，应当采取措施避免自身利益与公司利益冲突，不得利用职权牟取不正
当利益。”该条明确了忠实义务的实质判断标准。
新公司法第181条、第182-185条对董监高忠实义务的具体内容进行了详尽规定。
《公司法》第一百八十四条对董监高的竞业限制义务进行了明文规定，
“董事、监事、高级管理人员未向董事会或者股东会报告，并按照公司章程的规定经董事会或者股东会决议通过，不得自营
或者为他人经营与其任职公司同类的业务。”
竞业限制义务从属于董监高的忠实义务，是忠实义务的具体体现及要求。董监高在担任公司职务过程中会掌握公司大量经营
信息，如不对董监高从事同类业务加以限制要求，则极易发生泄露公司秘密，损害公司商业机会等损害公司利益的情形。
然而，新公司法对董监高同业竞争并非完全禁止。前述情形下，董监高应就相关同业竞争情况向权力机构（特指同意权）报
告，并经权力机构决议通过准许即可。
此时，董监高应向董事会还是股东会履行报告义务，公司可以视其实际情况，通过章程规定将同意权限定于股东会或是赋予
董事会，甚至是根据公司实际管理需要，进一步排除董事会都存在空间及可操作性。
发生法律规定事项→履行报告义务→股东会/董事会决议通过准许，即可自营或为他人经营同类业务。
另外，新公司法新增关联董事回避表决制度也在一定程度上在程序上确保了程序公平。
极兔竞调，专注竞业限制12年，关注我，教你如何破局！
Executive's non compete obligation
According to Article 180, Paragraph 1 of the Company Law,
Directors, supervisors, and senior management personnel have a duty of loyalty to the company and should take measures to avoid conflicts of interest between themselves and the company. They shall not use their power to seek improper benefits. This article clarifies the substantive criteria for judging the duty of loyalty.
Articles 181 and 182-185 of the new Company Law provide detailed provisions on the specific content of the fiduciary duty of directors, supervisors, and senior executives.
Article 184 of the Company Law explicitly stipulates the non compete obligations of directors, supervisors, and senior executives,
Directors, supervisors, and senior management personnel shall not engage in self operated or operated business similar to that of the company they serve for others without reporting to the board of directors or shareholders' meeting and obtaining approval from the board of directors or shareholders' meeting in accordance with the provisions of the company's articles of association
The obligation of non compete is subordinate to the duty of loyalty of directors, supervisors, and senior executives, and is a specific manifestation and requirement of the duty of loyalty. During his tenure in the company, Dong Jiangao will have access to a large amount of business information. If there are no restrictions or requirements on Dong Jiangao's involvement in similar businesses, it is highly likely to result in the leakage of company secrets, damage to the company's business opportunities, and other situations that harm the company's interests.
However, the new company law does not completely prohibit inter industry competition among directors, supervisors, and senior executives. In the aforementioned circumstances, the board of directors, supervisors, and senior executives should report the relevant industry competition situation to the authority (specifically the consent authority) and obtain approval through a resolution of the authority.
At this point, the board of directors, supervisors, and senior executives should fulfill their reporting obligations to the board of directors or the shareholders' meeting. The company can, depending on its actual situation, limit the consent authority to the shareholders' meeting or grant it to the board of directors through the articles of association, and even further exclude the board of directors from having space and operability according to the actual management needs of the company.
In the event of a legal requirement → fulfillment of reporting obligations → approval by the shareholders' meeting/board of directors' resolution, one may engage in self operated or operated similar businesses for others.
In addition, the new Company Law has added a system for related directors to recuse themselves from voting, which to some extent ensures procedural fairness.
Jitu Competitive Adjustment, focusing on non compete restrictions for 12 years, follow me and teach you how to break through!
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