The Economic Analysis of Business Judgment Rule– Also on the Application of Business Judgment Rule in Close Corporation

• Main Authors: Hsia-Sheng Lin, 林夏陞
• Other Authors: Hsin-Ti Chang
• Format: Others
• Language: zh-TW
• Published: 2016
• Online Access: http://ndltd.ncl.edu.tw/handle/hntttr

碩士 === 國立臺北大學 === 法律學系一般生組 === 104 === The development of Business Judgment Rule in our country, in contrast to common law, started late, and the concept of this rule is not accepted by all civil judgments. There were a doctrinal dispute of this rule in American law, one considered the rule as the standard of liability, which established a requirement of judicial review and distribution principles of the burden of proof; another seem the rule as an abstention doctrine, which claim that Courts should abstain from reviewing the substantive merits of the directors' conduct unless the plaintiff can carry the very heavy burden of rebutting that presumption. On the other hand, legislations of close company’s chapter in the Taiwan Company Act was adopted last year. It provided a new option to someone who want to set up a Venture Capital or small-capital businesses. But it is a issue that the Business Judgment Rule can apply in the directors’ fiduciary duty cases of close company or not. The minority shareholder in close companies, different from public companies, are vulnerable and could be oppressed by controlling shareholders. It would be unfair that director can protect by Business Judgment Rule when the court review director’s oppression. In this way, this article synthesized the doctrinal dispute and guiding principle of this rule, also discussed the function of this rule in the method of economic analysis. Beside, this article synthesized the Judicial Opinions in Taiwan and commented on its disadvantage. Finally, this article discussed the application of Business Judgment Rule in Close Corporation