论公司法上的经营判断规则

On Rules of Business Judgment in Company Law

本质上,经营判断规则是对公司管理者注意义务的一种修正。确立该规则,既是保障管理者经营权、鼓励实质管理者大胆经营的需要,也是司法因应经营决策特点及回避对经营进行审查的一种策略,更是自由主义在公司法上的反映。从完善公司治理机制而言,我国将来也宜导入经营判断规则。

The business judgment rule is in essence an amendment to company directors and officers' duty of care. Establishment of such rules is the need to ensure their right to operate and to boost their confidence in doing their job. It is a reluctant choice in the circumstances that judges have difficulty in deciding whether a business judgment is right or wrong. Moreover, it is the reflection of liberalism in corporate law. In order to perfect corporate governance in China, it will be convenient to introduce the rule in China.