Research On The Introduction And Application Of Business Judgment Rule In China

In the context of comprehensively optimizing the business environment,the civil code was promulgated,the Securities Law was overhauled,The comprehensive deepening of reform of China’s capital market has entered a period of attack and victory,the reform of the company’s modern governance system has also been put on the agenda,and the latest "Draft Amendment to the Company Law" has been submitted to the Standing Committee of the National People’s Congress for deliberation at the end of2021,and the core goal of its reform is to comprehensively promote the modernization of China’s corporate governance system and governance capabilities,so that Chinese companies can better cope with the increasingly fierce global commercial competition.In this process,the lack of legislation and judicial practice of the duty of diligence of directors of the company has attracted great attention,and the Draft Amendment to the Company Law has refined the concept of the obligation of diligence to a certain extent,but it is far from enough for our current goal of reform of the corporate governance system,and at this time,the business judgment rules that accompany the obligation of diligence have entered our field of vision,which has clear rules for judging the obligation of diligence and the reasons for exemption from liability,thereby reducing the risk and responsibility of directors’ decision-making.It also has the necessity and feasible basis for introducing china,and is a system that we must consider when further improving the system of directors’ duty of diligence.This article consists of four chapters.The first chapter briefly introduces the connotation and judgment criteria of the duty of diligence,the connotation and institutional value of the commercial judgment rules and their institutional development in various countries and the initial attempts in china’s judicial practice;on the basis of this theory,this chapter combines the legislation and judicial practice of China’s Company Law,and preliminarily discusses the legislative deficiencies and practical problems in China in terms of the standards for judging the duty of diligence and the grounds for exemption from liability,as well as the resulting dilemma of corporate governance in China;It is proposed that the introduction of the commercial judgment rule in China may be a reasonable countermeasure to solve the problem of the lack of legislation and judicial practice of the duty of diligence.In order to demonstrate the theoretical assumptions put forward in the first chapter,the second chapter discusses the necessity of introducing commercial judgment rules in China: first,in terms of improving the institutional system,the introduction of commercial judgment rules is the need to enrich the content of China’s diligence obligation system,unify the adjudication criteria for diligence obligations,and provide behavioral guidance for commercial activities and improve the level of commercial rule of law in China;secondly,under the pressure of the trend of board centrism,the introduction of commercial judgment rules is the need to release the creativity of directors and cultivate modern entrepreneurial spirit Finally,based on the current situation of state-owned enterprise reform and its reform needs,it is demonstrated that the introduction of business judgment rules has a good institutional promotion and optimization effect on the reform of state-owned enterprise company system.The third chapter is divided into two parts: one is to sort out and demonstrate the existing basis and feasibility of the introduction of business judgment rules into China from both theoretical and practical aspects and the background of business environment optimization;the other is to sort out the current concerns about the introduction of business judgment rules facing or may lead to problems,and combined with China’s actual situation,these concerns have been responded to separately,and the conclusion that the introduction of business judgment rules in China can be avoided or solved through appropriate system design.Therefore,the introduction of commercial judgment rules in China is really necessary and feasible,while the concerns about its introduction problems are mostly untrue,and the theoretical and practical obstacles to the introduction of commercial judgment rules in China have basically been broken.The fourth chapter discusses the rule positioning and introduction path of business judgment rules,clarifies the positioning of business judgment rules as judicial review rules and exemption defenses,and analyzes the three introduction methods proposed by the current theoretical circles.The conclusion that the introduction of judgment rules should be based on the Company Law,supplemented by judicial interpretations and guiding cases;Chapter Five focuses on the application of business judgment rules,and first discusses how to deal with the introduction of business judgment rules into my country and the infringement of tort rules.Then,it discusses the specific application of my country’s commercial judgment rules by focusing on four aspects: standard elements,applicable objects,distribution of burden of proof,and specific application according to the type of company.