美国法上的商业判断规则及其对我国的适用性

商业判断规则作为美国公司法的一项重要制度,被视为是保护董事承担责任的安全港,一般情况下,只要无利害关系的董事在决策前知晓决策内容,并理性地认为该行为最符合公司的最佳利益,从而做出最适当的决策,那么他就可以此自我保护,排除法院的干涉。我国新公司法首次规定了董事的"勤勉义务"(注意义务),但这种粗线条的规定并不利于具体司法实践,同时对董事课加过重的责任,这种情况下,商业判断规则的引进就显得十分必要。

On the Business Judgment Rule of American Law and Its Applicability to China

As an important principle embedded in American Corporation Law,Business Judgment Rule serves as a shield for directors of corporations from risk of liabilities brought from necessary decision makings.In general,a rational director with adequate information of the decision to be made tends to protect himself from legal intervention as long as the best resolution is made in favor of the corporation through his most reasonable judgment of interest on corporation's part.Although the rule of Fiduciary Duty(Duty of Due Care) of directors is introduced for the first time with the enactment of new Corporation Law of China,it is lack of practicability in law enforcement due to its obscurity.Directors of corporations are forced to assume too much liability as well according to the new rule.So,for us,the introduction of Business Judgment Rule is essential.