The business judgment rule applicable in China
|School||Central University for Nationalities|
|Course||Civil and Commercial Law|
|Keywords||Business Judgment Rule Subjective Objective Case Law Economic crisis|
Business judgment rule exists as a common law system in the protection of the interests of Directors mechanism, the business judgment rule to exclude the liability of the directors have a reasonable business decision, it is a modern company legislation importance in modern society, with the expansion of corporate social influence business judgment the role of the rule has become even more important, and gradually accepted world for Improving Corporate legislative system, safeguard the legitimate rights and interests of Directors, our necessary on the basis of the evaluation of the business judgment rule, leverage and introduction. This paper is divided into five parts. The first part is an introduction, introduces the research background and significance of this paper, a brief introduction to the Research on the business judgment rule in China and the contribution of this article and inadequate. The second part of the historical evolution of the business judgment rule and doctrine of the history of the development of the business judgment rule beginning from the historical process of the development of the business judgment rule describes the basic connotation of the business judgment rule, introduced two of our domestic business judgment rule doctrine, trying to find common and deficiencies of the two doctrines, look at the directors to make business decisions facing difficulties to the point of view of the economic crisis. The third part of the constituent elements of the business judgment rule. Whether involving subjective state of the directors and management personnel to the business judgment rule elements into subjective elements and objective elements, objective elements include the disinterested directors and decision-making matters, to fulfill the reasonable duty of care, to serve the best interests of the company, objective Elements of directors in good faith, without gross negligence. The fourth part is the possibility and feasibility of the business judgment rule applicable in our country. The part of the context of the Anglo-American legal systems of the business judgment rule is applicable to focus demonstrated the possibility and feasibility of the introduction of the business judgment rule in China. The fifth part of the value of the business judgment rule is applicable in our country. This part of the business judgment rule applicable in China as its ultimate aim, starting from the current legislative director of the responsibility system, lack of analysis of the existing company legislation, analysis of the introduction of the business judgment rule has important significance to improve the current legislative system especially the improvement of the liability of directors system to provide a little help. Take comparative study of empirical research and normative research methods, starting from the business judgment rule, comparative analysis based on the reality of China's national conditions, China and the differences of the common law system, required for the introduction of the business judgment rule our country's social, economic and legal conditions for analysis , the possibility of our transplant business judgment rule of the common law system, the feasibility analysis of jurisprudence, from the impact of economic crisis, this new perspective on the business judgment rule. The overall focus from the business judgment rule, the business judgment rule as the premise of this article, to the condition of our country as a basis in reality, the business judgment rule, systems analysis, and comparative analysis of the differences in our Common Law. Chinese scholars of the business judgment rule to the theoretical premise, combined with the corresponding theoretical abroad, social, economic, and legal conditions required for the introduction of the business judgment rule in China to analyze the possibility of transplantation common law system of the business judgment rule, conduct a study on the feasibility of the business judgment rule doctrinal exposition and analysis of our reality legislation, and recommendations to further improve our future company legislation on the liability of directors System.