论美国《公司法》中的经营判断规则

On the Business Judgement Rule in The Company Law Of the United States

现代公司是资产所有权与经营权二权分离的产物,其经营治理是精英即董事之治。如何在保障股东权益而课于董事在公司经营中必要之义务的同时给予董事在经营中必要的灵活权衡,是公司法的一个大课题。在这方面,美国公司法走得比别的国家远。美国公司法要求董事在公司经营中要承担忠实义务和注意义务,同时为董事提供了经营判断规则,以保障其在尽了必要义务时不因经营失误受到股东攻击和法律非难。我国是市场经济国家,在公司立法方面有必要引入经营判断规则。

Modern company is the outcome of the separation of ownership of the asset and management power of the asset, whose management is elite's management, namely management of the director. It is a big task of the company law how to balance the interests between the shareholders and directors when the directors who should be given necessary flexibility of management when be imposed on necessary compulsory in the management of the company. In this respect, the company law of the United States goes further than other nations. The company law of the United States requests that the directors have to undertake duty of loyalty and duty of care in company management, providing the business judgment rule for the directors at the same time to guarantee when these directors do their necessary duty they should not be attacked by shareholders and condemned by law because of their errors in the management. It is really necessary for our country where the system qf market economy has been established to introduce the business judgment rule in our company lawmaking.