On The Business Judgment Rule

The business judgment rule is a judicial review standard that originated in the judicial practice of the United States.As a director's interest protection mechanism,its main purpose is to maintain the directors' decision-making power,give directors considerable freedom in business decision-making,allow directors to make decisions bravely,and reduce directors' worries.The business judgment rule has developed into a mature case law rule in the evolution of American judicial practice,and a new development trend has emerged.This article takes the business judgment rule as the starting point and elaborates the basic theory and the origin and application in United States.The paper analyzes the relevant legislation and judicial application in China,and puts forward the suggestions for the construction of the business judgment rule,and strives to introduce business judgment rules in China.The first part of this article mainly introduces the basic theory of the business judgment rule,and explains "what" the business judgment rule.First of all,the article introduces the origin of the business judgment rule,and summarizes the definition of the business judgment rule from the judge's explanation.Secondly,the relationship between the business judgment rule and directors' duty of care is clarified.The business judgment rule modifies the duty of care at the value and practice levels.Finally,from the perspective of justice,directors and companies,the rationality of the existence of business judgment rules is analyzed.The second part of this article mainly introduces the judicial application of business judgment rules in the United States.Firstly,it summarizes the applicable elements of the business judgment rule in the scope of application,subjective aspects,and objective aspects.Secondly,it conducted a case study on the general application of the business judgment rule in the field of reviewing directors' duty of care,and the special application in the field of anti-acquisition and derivative litigation.The trend of the evolution of the business judgment rule is grasped and the meanings applicable in each field case are summarized.Finally,it evaluates the business judgment rule in the US.The third part of this article mainly studies the application of China's business judgment rule through empirical analysis.Firstly,I searched the relevant laws and other normative documents,and analyzed the relevant provisions of the legislation.I found that China did not clearly stipulate the standards for reviewing the directors' duty of care in any normative documents.Secondly,I searched the judicial cases and counted the commercial courts in China.The criteria for review include tort law standards,normal business conduct standards.and the business judgment rule.And identifying and summarizing the characteristics of the case and the issues it reflects.The fourth part of this article mainly studies the issues related to the construction of the business judgment rule in China.Firstly,it analyzes the introduction of the business judgment rule in Japan and Australia,and provides a reference for the mode of introducing the business judgment rule in China.Secondly,it analyzes two controversies in the academic circles about the mode of introducing the business judgment rule.Through the analysis of the two types of disputes,the author recommends that the business judgment rule should be written into the "Company Law",and the specific contents of the business judgment rules are explained.Finally,it analyzes the issues of attention to the introduction of the business judgment rule,including clarifying the status of the business judgment rule in China,improving the directors' responsibility system,and regulating the discretion of judges.