碩士 / 國立臺北大學 / 法學系 / 95 / The amendment of corporation law in November, 2001 added Article 23rd Sec. 1, provides that “Directors and officers shall exercise their discretion with duty of loyalty and duty of care, directors and officers will be responsible for damages if they violate the duties and cause injury to the corporation.” The rationale interprets that “ By referring to common law, this amendment added the concepts of duty of loyalty and duty of care …..”. However, it is unclear if the Business Judgment Rule (thereinafter“BJR”) was led in our corporation law along with the concepts of duty of care and duty of loyalty contemporaneously. In other word, our corporation law does not clearly indicate if a director or officer who is not interested in the subject of the business decision makes the business decision and is fully informed with respect to the subject of the business decision to the extent that the director or officer reasonably and honestly believes is in the best interests of the corporation, should be responsible for the damage caused thereby to the corporation. Whether directors are allowed to assert BJR for being free from duty when they are sued for damages due to their violation of duty of care? Can the court apply the BJR as merit to prevent the directors from duty while dealing with suits which are involved with violation of duty of care by directors? Are there relevant precedents in common law? The issues like these are all disputes both in practice and in theory, thus are worthy of being discussed further. Another issue included in this essay is if it is necessary to introduce the BJR into our legal system in case that the court is not allowed to apply the BJR to let the directors be free from duty before the BJR is in the statutes literally.
Furthermore, international mergers and acquisitions (thereinafter“M&A”) have happened very frequently in the recent years, and this kind of transactions also appear in Taiwan occasionally. When an acquiring company is trying to engage in a hostile acquisition to the target company, it is also a business decision for the directors to determine if they want to take a defense and what kinds of defenses is best for the company. If such a business decision results in injury to the company or its shareholders, the directors would claim the BJR to prevent themselves for duties. Thus, if there is a similar case raised in Taiwan, could the directors be free from duties by the BJR? The issues that have been mentioned led to my research motives.
The concept of the BJR is borrowed from the common law, so firstly, in the chapter II I am gonna introduce the basic concepts of the BJR. Secondly, the chapter III encompasses the application and development of the BJR. Finally, from the perspectives of comparative law, the chapter IV analyzes the application of the BJR in domestic legal system and the necessity of leading it to our corporation law.
The essay concluded that before our corporation law clearly regulates the BJR, court should not be allowed to apply the rule as merit to let directors free from duties. In order to encourage business operators to run the business with good faith and assume the commercial risk, plus, courts lack the ability to review the business decision of a corporation, it is necessary to introduce the BJR into our legal system. Though the issues of applicable subjects, requirements and M&A need to be taken into consideration while introducing the rule into domestic law.
| Identifer | oai:union.ndltd.org:TW/095NTPU0194043 |
| Date | January 2007 |
| Creators | LIN,YI-SHEN, 林怡伸 |
| Contributors | LAI,YING-JHAO, 賴英照 |
| Source Sets | National Digital Library of Theses and Dissertations in Taiwan |
| Language | zh-TW |
| Detected Language | English |
| Type | 學位論文 ; thesis |
| Format | 191 |
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