On The Application Of Commercial Judgment Rules In M ​​& A

The Business Judgment Rule (BJR) is gradually developed in the long-termjudicial practice by British and American courts.As a judicial principle for protect thecompany directors,it has obtained better development in foreign countries.Especiallyin the80s, it is widely used in Merger and Acquisition (M&A).But the BJR is not berecognized in our country,there is a big controversy about whether to protect thecompany directors of the target company in the process of M&A. However, the BJRas a judicial principle of company law,it is undoubtedly the most successful rule oflaw to Balance the company’s business risk and director responsibility up to now.The economic structure and development of our country has its owncharacteristics, legal source and environment also has many difference with thetraditional legal system, So how to introduce the foreign advanced principle ofcompany law is not a very easy problem to solve.In recent years, the Company Law ofthe PRC and the securities law of the PRC constantly absorbing the advancedexperience of foreign legislation, and the Measures for the Administration of theTakeover of Listed Companies made the law about M&A detailedly.However, theseadvances are not on behalf of the perfect in the area.We have a lot of problems aboutprotect the director in the process of M&A.For example,provisions relating to thespecific content is not detailed enough,there is not applicable to different companiesfor difference,judicial problems influence laws play a role,and so on.We can’t justblindly absorb the foreign advanced legislation, but also combined with thecharacteristics of our country’s economy and society.Only in this way can the role ofthe BJR into full play in the field of M&A.The article will be divided into three levels.First of all, introducing businessjudgment rule, including the origin and development of BJR, classic cases, and in casethe application of foreign M&A, then detailed analysis of the scope andapplication.Secondly, combining with the company law and other relevant legal toresearch on the related regulations about obligation of directors in M&A, and analyzethe restrictive factors of the BJR used in the M&A process.Finally, combining withour country concrete national condition, research that how it works well in the M&Aof our country, put forward the feasible implementing scheme.