我国司法引入商业判断规则的思考
发布时间：2018-11-24 16:53
【摘要】： 商业判断规则(Business Judgment Rule)是美国在公司制度运营及司法实践中逐渐建立并发展起来的一种公司法判例规则,是法院审查董事行为适当性的司法审查准则,是一项免除公司董事就合理经营事务承担法律责任的法律制度。 我国2006年公司法虽然规定了董事及高管对公司负有忠实义务和勤勉义务,但并未对该义务的内涵和标准做进一步的解释。如何区分董事行为属于正常的经营决策行为还是属于违反勤勉义务的经营决策行为,成为我国的现行法律体系中没有答案的问题。我国学界开始讨论是否可以通过吸收、借鉴商业判断规则以解决这一司法审判困境,并且针对如何学习、借鉴提出了一些可行的途径。但是笔者认为:讨论什么方式引进应该是针对该规则讨论中第二位的问题,商业判断规则是否适合引进,在什么样的条件下,什么样的时机引进才是第一位的问题。只有深入考量中国国情,对中国的文化背景、法律传统、执法者的素质及我国司法现状及进行全面考量后,才能够得出正确的结论。只有这样,才能保证一项吸收、借鉴的规则能够在新的法律土壤中焕发勃勃生机,才能有效地促进我国市场经济的健康发展,才能为社会主义法治理念的建立、完善起到积极的作用。 本文共分为四个部分。绪论部分主要是提出问题,说明本文的研究价值、与之前的研究相比本文的独创之处,对本文的研究方法及参考文献进行综述。 第一部分是以美国特拉华州公司法的起源与演变为基础,厘清商业判断规则的理论基础及法律特征。首先从商业判断规则的起源及演变分析该规则的适用条件。其次对该规则的理论依据进行分析。最后对该规则的性质进行判定:商业判断规则既是一项程序规则,也是一项实体规范,判例法特征是其显著特征。 第二部分笔者试图通过对具有代表性的商业判断规则案例进行实证分析,通过对各国吸收借鉴该规则所采取的态度进行比较,发现和提炼商业判断规则的显著特征和法律精髓。 第三部分将分析我国借鉴商业判断规则的必要性、可能性及可行性。我国司法制度的发展完善为引入商业判断规则提供了可能。现代公司制度的健全及科学的治理方式也需要引入商业判断规则。部分学者已经对吸收、借鉴的方式进行了有益的探讨。 文章的第四部分从我国的文化背景、法律传统、执法者的素质等方面提出引入商业判断规则不得不直面的障碍。提出在这样一个环境和基础上,深入研究商业判断规则的价值:社会主义法制建设、实现依法治国需要的不仅是几部先进的法律,更需要建立一种好的法律理念和法律文化,从而使本文具有更为广泛的社会意义。
[Abstract]:The commercial judgment rule (Business Judgment Rule) is a kind of company law case rule established and developed gradually in the operation of company system and judicial practice in the United States. It is also the judicial review criterion for the court to review the appropriateness of director's behavior. It is a legal system that exempts directors of a company from legal liability for reasonable business operations. Although the company law of our country in 2006 stipulates that directors and executives have the duty of loyalty and diligence to the company, they have not further explained the connotation and standard of this obligation. How to distinguish between the director's behavior which belongs to the normal management decision-making behavior or the business decision behavior that violates the duty of diligence has become a question that has no answer in the current legal system of our country. The academic circles of our country begin to discuss whether we can learn from the rules of commercial judgment to solve the dilemma of judicial judgment, and put forward some feasible ways to learn from them. However, the author thinks that discussing what way to introduce should be the second problem in the discussion of this rule, whether the commercial judgment rule is suitable for the introduction, and under what conditions, what kind of timing is the first problem. Only after deeply considering China's national conditions, the cultural background, the legal tradition, the quality of the law-enforcers and the current judicial situation of our country, can we draw a correct conclusion. Only in this way, can we guarantee an absorption and reference rules that can radiate vitality in the new legal soil, effectively promote the healthy development of our market economy, and establish the socialist concept of the rule of law. Perfection plays a positive role. This paper is divided into four parts. The introduction part is mainly to put forward the question, explain the research value of this paper, compare the original place of this article with the previous research, carry on the summary to the research method and reference document of this article. The first part is to clarify the theoretical basis and legal characteristics of commercial judgment rules based on the origin and evolution of Delaware Company Law. First, from the origin and evolution of the rules of commercial judgment, the applicable conditions of the rules are analyzed. Secondly, the theoretical basis of the rule is analyzed. Finally, the nature of the rule is determined: the commercial judgment rule is not only a procedural rule, but also a substantive norm, and the case law characteristic is its remarkable feature. In the second part, the author tries to make an empirical analysis of the typical cases of commercial judgment rules. By comparing the attitudes adopted by various countries to absorb and learn from the rules, the author finds and refines the remarkable characteristics and legal essence of the commercial judgment rules. The third part will analyze the necessity, possibility and feasibility of using commercial judgment rules for reference in China. The development and perfection of China's judicial system provides the possibility for the introduction of commercial judgment rules. The perfection of modern company system and scientific governance also need to introduce commercial judgment rules. Some scholars have carried on the beneficial discussion to the absorption, the reference way. The fourth part of the article from the cultural background, legal tradition, the quality of law enforcement and other aspects of the introduction of commercial judgment rules have to face the obstacles. On the basis of such an environment and on the basis of such an environment, it is proposed that the value of the rules of commercial judgment should be studied in depth: the construction of the socialist legal system requires not only several advanced laws, but also a good legal concept and legal culture. So that this article has more extensive social significance.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
本文编号：2354405
[Abstract]:The commercial judgment rule (Business Judgment Rule) is a kind of company law case rule established and developed gradually in the operation of company system and judicial practice in the United States. It is also the judicial review criterion for the court to review the appropriateness of director's behavior. It is a legal system that exempts directors of a company from legal liability for reasonable business operations. Although the company law of our country in 2006 stipulates that directors and executives have the duty of loyalty and diligence to the company, they have not further explained the connotation and standard of this obligation. How to distinguish between the director's behavior which belongs to the normal management decision-making behavior or the business decision behavior that violates the duty of diligence has become a question that has no answer in the current legal system of our country. The academic circles of our country begin to discuss whether we can learn from the rules of commercial judgment to solve the dilemma of judicial judgment, and put forward some feasible ways to learn from them. However, the author thinks that discussing what way to introduce should be the second problem in the discussion of this rule, whether the commercial judgment rule is suitable for the introduction, and under what conditions, what kind of timing is the first problem. Only after deeply considering China's national conditions, the cultural background, the legal tradition, the quality of the law-enforcers and the current judicial situation of our country, can we draw a correct conclusion. Only in this way, can we guarantee an absorption and reference rules that can radiate vitality in the new legal soil, effectively promote the healthy development of our market economy, and establish the socialist concept of the rule of law. Perfection plays a positive role. This paper is divided into four parts. The introduction part is mainly to put forward the question, explain the research value of this paper, compare the original place of this article with the previous research, carry on the summary to the research method and reference document of this article. The first part is to clarify the theoretical basis and legal characteristics of commercial judgment rules based on the origin and evolution of Delaware Company Law. First, from the origin and evolution of the rules of commercial judgment, the applicable conditions of the rules are analyzed. Secondly, the theoretical basis of the rule is analyzed. Finally, the nature of the rule is determined: the commercial judgment rule is not only a procedural rule, but also a substantive norm, and the case law characteristic is its remarkable feature. In the second part, the author tries to make an empirical analysis of the typical cases of commercial judgment rules. By comparing the attitudes adopted by various countries to absorb and learn from the rules, the author finds and refines the remarkable characteristics and legal essence of the commercial judgment rules. The third part will analyze the necessity, possibility and feasibility of using commercial judgment rules for reference in China. The development and perfection of China's judicial system provides the possibility for the introduction of commercial judgment rules. The perfection of modern company system and scientific governance also need to introduce commercial judgment rules. Some scholars have carried on the beneficial discussion to the absorption, the reference way. The fourth part of the article from the cultural background, legal tradition, the quality of law enforcement and other aspects of the introduction of commercial judgment rules have to face the obstacles. On the basis of such an environment and on the basis of such an environment, it is proposed that the value of the rules of commercial judgment should be studied in depth: the construction of the socialist legal system requires not only several advanced laws, but also a good legal concept and legal culture. So that this article has more extensive social significance.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
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