德国经营判断原则的发展及其问题

Developments and Problems of German Business Judgement Rules

1997年,联邦最高法院对Arag Garmenbeck案的判决是德国法上首次肯定经营判断原则的案例。该判决对德国经营判断原则的立法产生深远影响。德国于2000年在《股份公司法》第93条第1款第2项中规定了经营判断原则,明确经营判断原则由以下五个要件构成:第一,企业家的经营决策;第二,可以合理地相信董事是为实现公司利益最大化而实施的行为;第三,该行为不受特别利益或外部之影响;第四,可以合理地相信该行为是基于恰当信息而作出的;第五,善意行为。然而,联邦最高法院近年对经营判断原则的适用提出了新要求:当公司主张董事因违法行为对公司造成损害时,董事负有举证证明自己并未违反义务,或者不存在过失,或者该损害是由其他行为而产生等的责任。除此之外,董事还须举证证明其经营决策行为并未超出企业家裁量的范畴。

In German-speaking civil law countries, the first mention of what is now generally known as Business Judgment Rule(" BJR ") is found in German Supreme Court decision ARAG vs. Garmenbeck in April 1997. The judgment describes a personal liability of executive board members. In 2000, the German legislator codified parts of the BJR's substantive implementations in section 93 para. 1 German Stock Company Act. Then, it is clear that the German law carves out five characteristics determining the BJR as following: It must be a) an entrepreneurial decision, b) taken by directors not guided by extraneous interest, c) in the company's best interests, d) on the basis of adequate information; and, e) without taking irresponsible hazard. Recently, the German Supreme Court has made further changes to the law of the BJR. In detail, the board members must now prove the legality of their decision, or their action taken was not at fault or it did not cause the damage, while the company must prove the damage, the causal connection between the damage and the directors' decision as well as circumstances indicating a breach of duty. Besides, the board members must prove their action was within the limits of the allowed entrepreneurial discretion grossly.