The Application of Business Judgment Rule in Law and Business Decision

• Main Authors: Yang-Min Liu, 劉陽明
• Other Authors: 陳忠仁
• Format: Others
• Language: zh-TW
• Published: 2013
• Online Access: http://ndltd.ncl.edu.tw/handle/33833956451725334020

碩士 === 國立臺灣大學 === 商學組 === 101 === 　　In recent years rulings of criminal cases referring to Business Judgment Rule is increasing, which also draws attention among the academic circle. During the trial of the HJTC case at Hsinchu District Court, Mr. Cao Xing-cheng defended himself with Business Judgment Rule and argued that Business Judgment Rule encourages people with talent to take aggressive initiatives and save the judge from making complicate business decision, and the competency of a member of the board should be left to the discretion of the board of directors and should not be a concern of the court. His argument is ensued with intensive discussion among the public. The issue of permissibility of Business Judgment Rule as the criterion for the ruling of guilty or not guilty on criminal charge of breach of trust receives controversial and diversified comments from the academic and practitioners’ circles. This Study summarizes and analyzes available criminal case rulings, scholar dissertations published on periodicals, and two cases of Rechi and BenQ. The conclusion drawn favors Business Judgment Rule that it should be permissible on criminal charge of breach of trust and it allows legal professionals to think outside the box. It is recommended that prosecutors and judges alike should not only think from the aspect of business owners and take into consideration that enterprises must make businesses judgment in favor of competitiveness, but also give them positive approval instead of placing criminal charge of breach of trust on them. Regarding to practice of Business Judgment Rule, on the system side, it is recommended that judicial authorities should self-restrain on the ultima ratio of penalty and the principle of difference, and judges should favor the permissibility of Business Judgment Rule. On the legality side, it is recommended to improve civil indemnification legislation and revise and augment the Guidelines for Prosecutor Offices Processing Breach of Trust Cases. On the implementation side, it is recommended that a prosecutors’ performance appraisal system and a Business Judgment Rule checklist should be established. On the other hand, an enterprise makes decisions of various importances on a daily basis but shows little respect for legal professionals in its organization and neglects legal risks in its decision-making. When a decision fails, it causes not only economic loss, but also litigation. To reduce legal risk and improve decision-making quality, Business Judgment Rule not only serve as a criterion for the ruling on charge of breach of trust, but also an important standard for enterprise decision-making as a required process of enterprise decision-making. On the legal side, it is recommended that an enterprise should evaluate legal risk when making decisions. On the system side, it is recommended that an enterprise should consult with legal professionals when making decisions. On implementation side, it is recommended that an enterprise should take into account the impact of possible criminal charges.