| Summary: | 碩士 === 國立中正大學 === 會計資訊與法律數位學習碩士在職專班 === 101 === The amendment of corporation law in November, 2001 added section 1 of Article 23, introducing the concept of fiduciary duty. The rationale interprets that “ By referring to common law, this amendment added the concepts of duty of loyalty and duty of care …”. However, it is unclear if the Business Judgment Rule was introduced to our corporation law along with the concepts of fiduciary duty contemporaneously.
U.S. courts are reluctant to second guess if directors’ business judgment and strategy are successful or not, instead they develop the “ the Business Judgment Rule”. The rule shields corporate directors and officers from liability for disinterestedness or harmful corporate transactions if they were made in good faith, with due care, within the directors’ or officers’ authority and wasting no corporate asset. The rule is a presumption that can protect directors from charge of misconduct as long as the conduct attributes to any rational business practice. Can the court apply the Business Judgment Rule when dealing with suits involving violation of criminal breach of trust by directors? Are there relevant precedents in common law? The issues like these are all disputable both in practice and in theory, thus are worthy of further discussion. This article would like to provide instruction, analysis and bring up recommendations on these topics for future research.
Firstly, in chapter II, I would like to introduce the basic concepts of the Business Judgment Rule. Secondly, in chapter III, the application of the Business Judgment Rule will also be introduced. Thirdly, chapter IV analyzes Article 342 of Taiwan’s Criminal Code. Finally, chapter V introduces the application of the Business Judgment Rule in criminal breach of trust.
This article also draws a conclusion that although the judge could not properly apply the Business Judgment Rule in criminal cases, they probably could still extract the elements of the Business Judgment Rule and transform them in the objective and subjective perspectives of criminal breach of trust. As a matter of fact, the Business Judgment Rule can reform the controversy if it is correctly applied by judges.
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