Study On The Application Of Business Judgment Rules In China

Director in the management of the company holds the important and widely power in the process of management, control of shareholders and directors of management control to some extent is opposite on interests, how to protect the rights and interests of the shareholders and make director’s power limited in a reasonable scope, and maximizes the director of the enthusiasm of management at the same time to prevent the director because of unreasonable commercial decision-making behavior and actively take responsibility to become a major practical problems.This article from the shareholder direct litigation and derivative litigation phenomenon put forward reference for business judgment rule, through to the business judgment rule theory expounded fully understand the rules, on the analysis of the related law and judicial practice in our country is put forward on the basis of introducing the rules in our country, makes every effort to build and apply business judgment rule in our country.This article is complete, logical, coherent, besides preface and epilogue, the five parts as followed:The first part: The problems of application of business judgment rule.Our country "company law" stipulate the "shareholder direct litigation" and "shareholder derived litigation", provides institutional basis for the protection of the shareholders’ interests.However, since there is no reasonable means of regulation, shareholders in protecting its own interests at the same time it created for the director’s rampant litigation.The suit right of the shareholders of directors abuse not only influence the normal operation of the directors of the pressure will cause the directors face the responsibility, to deal with the problem of the reference system of the developed country business judgment rule in our country are put forward.The second part: The basic theory of business judgment rule.First of all, from the understanding of the business judgment rule definitions understand the system of the rules;Secondly, the paper expounds the rich connotation of the rule, namely: no interests associated goodwill director based on rational knowledge to make business judgment, and honestly believe that the best interests of the company, even in the objective due to the business decision has caused the loss of the company, a director of business judgment behavior will be protected by the rule, free of responsibility.Third, analysis the difference between the business judgment rule and the directors’ duty of notice and contact;Fourth, respectively introduce the United Kingdom, the United States and Germany law duty of care standard of judgment;Finally, the application of the business judgment rule must meet certain constitutive requirements: kindness, best interests for the company, business decisions, independence.The third part: The present situation of legislation and judicial practice in our country.Our country "company law" provisions on "diligence obligation" and the meaning of duty of care.The regulation embodies the legislation progress, but the rules are too principled lack of operability in the judicial practice in our country.In general, the regulation of our country’s laws and regulations is chaotic, expressly the directors’ duty of diligence judgment standard, lack of diligence duty of judicial review system, and result oriented responsibility rules lack of rationality, lack of diligence duty related system regulation, director liability for damages in theory there is no clear and the lack of regulations on the system.It can be seen in the judicial practice by case processing reference to diligence obligation law almost negligible, at the end of this section a brief introduction to this reason.The fourth part: The law transplantation of the business judgment rule system.Business judgment rule although grow mature in case law of the soil, but the spiritual connotation of business judgment rule is full of universal, introducing business judgment rule in China and it is necessary.When introducing business judgment rule by outside legal transplant model for reference, in Australia, the mode and Japanese mode is studied to explore the introduction path of our country.Our country as a statute law country, the introduction of business judgment rule must be integrated into the existing legal system of our country.As legislative and judicial interpretation trial bridge connection has strong flexibility, can remedy the rigid rules of statute law, the judicial interpretation of the supreme people’s court issued guidance to the lower court judgment, therefore in judicial interpretation as the introduction of business judgment rule is a very good breakthrough.The fifth part: Structure and application of the business judgment rule.The introduction of business judgment rule and apply to the company law in our country the directors’ duty of diligence standards shall be detailed and enhance operability in the judicial practice;The duty of care examination principle of tempering justice with mercy in accordance with market economy of our country actual situation and the characteristics of special industries;Article in the statute law clear business judgment rule applies in judicial explanation in details;To regulate and unified the applicable standards in order to guarantee the business judgment rule in our country all levels of court orderly reasonable apply;Written in the judicial interpretation rules to perfect the lawsuit system of prepositional procedure, etc.