公司捐赠与董事的责任——美国法与日本法的启示

Corporate Donations and Duty of Directors

公司的公益性捐赠值得鼓励与支持,但因实施过度的捐赠而给公司利益造成损失的董事应承担责任。通过考察美国、日本的判例及学说得知,由于捐赠并非经营性行为,适用于判断违反忠实义务的公正标准与判断违反注意义务的经营判断原则并不适合于审查捐赠行为,而是要适用合理性标准。而合理性标准包括金额的合理与目的的合理。判断金额的合理,除应考虑公司的利润、资产等经济状况外,还应结合捐赠的目的进行综合判断。

Corporate donation deserves encouragement and support. Nevertheless, directors shall assume responsibility for corporate loss caused by excessive donation. Through study of eases and doctrines in USA and Japan, fairness test used to judge breach of loyalty duty and business judgment rule used to judge breach of duty of care are not suited to the examination of acts of donation, since donation is not regarded as business operation. Reasonableness standard, therefore, is applied in examining corporate donation. Reasonableness standard includes reasonableness in amount and reasonableness in purpose. To judge reasonableness in amount, we should consider not only economic conditions such as corporate profit and assets, but also the purpose of donation comprehensively. For purpose related to business of corporate, discretion of directors shall be respected. However, for purpose irrelevant to business of corporate, donation should be strictly reviewed.