Business Judgment Rule and Directors' Decision Making Process－From Conflict of Interests Revelation
| Autor: | Jia-Jen Tsai, 蔡嘉真 |
|---|---|
| Rok vydání: | 2010 |
| Druh dokumentu: | 學位論文 ; thesis |
| Popis: | 98 The fiduciary duties owed by corporate directors to the corporation they serve include the duty of care, duty of loyalty and duty of good faith. Sometime, directors must to seek other way such as the interests sending, interests exchanging to obtain or serve the corporation’s best interests. Conflict of interests may not breach the corporation’s interests and the fiduciary relationship. Directors who make such judgment calls poorly ultimately give way to superior executives; no such mechanism selects out judges who try to make business decision. To encourages competent individuals to become directors who otherwise might decline for fear of personal liability. However, the courts of Taiwan didn’t recognize the rule’s presumption for conflict conduct of directors. Moreover, the fiduciary duty is not clear to the section 23(1) of Company Act. Base on breach good faith, the compensations was frequently claimed by shareholders under Civil Procedure to directors. Many cases even have the claims by public procurator under Criminal Code. Therefore, Company Law be sure to draw up and business judgment rule have to legislate follow it as soon as possible. It will be good for the business transactions internationally. The business judgment rule is a presumption protecting conduct by directors that can be attributed to any rational business purpose. Five elements of the business judgment rule have been identified by the court: (1) a business decision, (2) disinterestedness and independence, (3) due care, (4) good faith, and (5) no abuse of discretion. The two types: fraud, illegality and ultra vires conduct, and waste are not protected by business judgment rule. In order to plead and prove a claim, a plaintiff must plead and prove facts overcome, directors bear the burden of proving the fairness of the challenged conduct. Actually, the business judgment rule can reform the controversy if the judges apply on the right way in Taiwan. |
| Databáze: | Networked Digital Library of Theses & Dissertations |
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