On The Introduction Of USA's Business Judgment Rule To China's Company Law

Company is the classical form of economics in which investors'possession power and management power set apart. And the two powers reflect the relationship between the shareholders and the directors---not just share the economic profit but resort to the benefit balance. Therefore, the directors who take the real power of the company should take the duties and obligations in order to prevent their power-misusing and also protect in order not to ascribe uncertain risks to the directors who have carried out their commitments. The Business Judgment Rules of American Company Law is the protective device for directors'benefit and also the internal motivation of the company's existence and development; the director's attentive complementary obligation, but also the procedural rules of the justice.The reason for the Business Judgment Rules, namely for which the court of justice doesn't investigate the loss caused by the directors'normal management strategies, is related to the essence of the directors'management belonging to the property right and the relation between the company's organ of self-government and the judicial organ. The directors'management should make decisions on basis of the analysis of the external environment and the internal conditions and situations in order for enterprise's overall developmental strategies and the management purpose, management policy and management strategy of the production, service, accumulation, investment, selling, distribution, etc. In the process of making policies, there are many kinds of factors affecting the process. And some of the factors are very difficult t foresee and even cannot be recognized. So making policy possesses the non-contract quality. The contract of directors'management power is partial contract.The Business Judgment Rule is in accordance with the characteristic of company's management. The company's management activities confront the market venture and uncertainty all the time. So the market business opportunities stay only a shot time. That needs the directors make policy in time on basis of the appropriate material even the emergent reaction. It may have a negative effect---interfere the director's normal work, slow down the efficiency, lose their business opportunities and finally affect the company's benefit if the court of justice have the right to examine the director's normal management policy behavior in sequence of the matter.With the maturity of the social legal environment and social market, especially after china's entry into WTO, Chinese enterprises are facing the challenges caused...