商业判断规则的引入问题反思

Reflections on the Introduction of the Business Judgment Rule

摘要: 新《公司法》的修订，进一步明确了勤勉义务的内涵，但缺乏勤勉义务的判断标准，这会导致该条款在司法实践中的适用难题。商业判断规则与勤勉义务一脉相承、不可分割，具有明确勤勉义务的判断规则和免责事由的价值。鉴于我国是采取成文立法模式的国家，以明确立法形式将商业判断规则确立下来的德国，其移植方式或许对我国具有更大的参考价值。考虑到商业判断规则在我国的基础较薄弱，短时间内被纳入《公司法》，反而会适得其反，若通过司法解释的方式引入商业判断规则，不仅立法成本更低，还更加灵活。

Abstract: The revision of the new “Company Law” further clarifies the connotation of the duty of diligence, but lacks criteria for judging this duty, which can lead to difficulties in applying this provision in judicial practice. The business judgment rule is closely related to and inseparable from the duty of diligence, and it has value in providing clear criteria for judging the duty of diligence and reasons for exemption. Given that China adopts a codified legislative model, Germany, which has established the business judgment rule in a clear legislative form, may offer greater reference value for China in terms of transplantation. Germany’s improved approach is to codify the business judgment rule into statutory law while implementing a reversal of the burden of proof system, thereby reducing the plaintiff’s burden of proof during litigation. Considering that the foundation of the business judgment rule is relatively weak in China, incorporating it into the Company Law in a short time could be counterproductive. Introducing the business judgment rule through judicial interpretation would not only have lower legislative costs but also be more flexible.