| The business judgment rule is a case law the United States gradually formed in the long-term judicial practice.Its main purpose is to maintain the business decision-making power, and seek the balance between directors and shareholders,company。In order to excitation the initiative and creativity of directors, to seek for the best interests of the company, meanwhile,contraint directors decision-making behavior, prevent directors violation duty of diligence, damage the interests of shareholders and the company At present, in the form of, the business judgment rule has two forms,one is the written law forms, such as Australia;the other is case law, such as the United States of america.In content, the business judgment rule only focus on decision-making process, such as the United States; and both focus on the content and process, such as japan. This paper attempts to business judgment rule as the breakthrough point, introduce in detail the concept and connotation, this rule generation and development, legal basis; meanwhile, introduce the element and judicial practice of the business judgment rule in US and Japan, finally, demonstration the possibility and necessity of introducing business judgment rule in China, introduce the mode and content.The paper divide into four parts:The first part:the overview of business judgment rule. As there is no common and authoritative definition of the business judgment rule, and there are few relative cases, Therefore, the first part of the article from the overall and macroscopic concept, the business judgment rule generation and development, legal basis, in order to make a macroscopic description of the business judgment rule, at the same time, lay a theoretical foundation to introduces the United States and Japan business judgment rule.The second part:the business judgment rule of the United States of America and the enlightenment to our country.Because the business judgment rule originated in the United States, and become perfect in the judicial practice, Therefore, focuses on the business judgment rule of the United States has the important enlightenment to our country. This section contains the following contents:the reason and background of the business judgment rule of United States, the relationship between business judgment rule and diligence obligations, the elements Of United States business judgment rule, not by the business judgment rule of protection in the case, the enlightenment to our country.The third part:the business judgment rule of Japan and the enlightenment to our country. Since China and Japan belong to the continental law countries, and the business judgment rule has new development in the judicial practice of Japan, Therefore, the business judgment rule of Japan also has an important significance to our country.This part includes:produce and constitute elements of Japanese business judgment rule,and enlightenment to our country.The fourth part:the feasibility of introducing the business judgment rule in china. Research on the legal system of foreign objective, is to provide experience for the relevant legal system in china. Therefore, this part from China’s actual situation, analyzes the necessity of introducing business judgment rule, and presents the author’s opinions and views about the model and content of introduction of the business judgment rule. |
