Empirical Study Of The Judicial Local Application Of The Business Judgment Rules

On December 30,2022,the Company Law(Revised Draft)(Second Review Draft)was officially released,and Article 180 of this revised draft further refines the concept of duty of diligence.Compared with the previous articles of the Company Law,the expression of the duty of diligence is more specific,but still more vague and general than the enumerated expression of the duty of fidelity,which also leads to the confusion of judges’ judgment in judicial practice,and the situation of different judgments in the same case sometimes occurs.In view of the fact that the current domestic regulations on the duty of diligence are far from satisfying the actual needs of corporate governance and judicial practice,some courts have begun to try the business judgment rules first,trying to make up for the lack of standards and exemptions for directors’ conduct.Therefore,under the tide of optimizing the business environment,we should further explore how to optimize the construction of the system of duty of diligence.For more than a hundred years,the common law countries have been using the business judgment rules as the review standard of the duty of diligence and the basis of directors’ liability exemption,and the two are interdependent and have a natural fit.Incorporating the business judgment rule into the duty of diligence system of the Company Law in our country is expected to fill the gap of the lack of diligence standards and liability exemption in China,and promote the modernization of corporate governance system and governance capacity.The first part introduces the basic theory of business judgment rule,including its origin and development,its essence and function,and the relationship between business judgment rules and diligence obligation,to pave the way for the subsequent discussion on the introduction and application of business judgment rules in our country.The second part describes the current situation of the local judicial application of the business judgment rules in our country,starting from the application of specific judicial practices,compiling and analyzing relevant data and facts,and analyzing the consensus and differences in the process of applying the business judgment rules.The third part is a theoretical evaluation of the local application of business judgment rules,analyzing the deep-seated reasons behind the consensus and disagreement in practice from two aspects: the positive significance of the application of business judgment rules in our country and the practical challenges encountered.The last part is the construction of the specific system of introduction,starting from three perspectives of functional positioning,rule connotation and transplantation mode,and designing the path of introduction of the rule and the logic of its application after its introduction based on the specific national conditions and institutional environment,expecting to break the dilemma of local application of the business judgment rules through reasonable and clear system design,maximize its true function,and improve the lack of judgment standard and exemption exit of the duty of diligence.The purpose of this study is to examine the local application of the business judgment rules,to maximize its true function,and to improve the lack of criteria for judging the duty of diligence and the exit of exemption.