| Summary: | 碩士 === 國立清華大學 === 科技法律研究所 === 103 === In Taiwan, there are corporate responsible persons or Entrepreneurs try to use Business Judgment Rule to defend in some criminal cases. Entrepreneurs have to make decisions properly and immediately to deal with the constantly changing business world. They contend that, courts should not judge whether their decision is appropriate or not at that time base on market results. According to Business Judgment Rule, there are always decision making risks in markets, the lost may not directly from business decisions making itself, and respect the fiduciary duty between shareholders and corporate responsible persons who are elected by them, to reduce the law to intervene.This principle improves enterprise acts more positively, allows business to take risks more or less, and encourages corporate responsible persons to innovate.
This article attempts to discuss the adjustments made by Germany and Taiwan. Because those two civil law system countries try to revise the law after it’s affected by business judgment rule from common law system. The law in Taiwan is mostly affected by civil law system, but also somehow influenced by common law system in United States. Germany, which face the similar situation like Taiwan. This article try to use Germany experience to deliberate the business judgment rule regulation system in criminal law. This article used the point of view which made by courts to discuss the business judgment rule. Checking that the court how to supply that theory in Taiwan. I tried to build a judicial revise system, and discuss the reason and necessity to induce business judgment rule in criminal cases. I used case analysis method as research method, and coordinate the criminal cases which made by supreme courts, Court of Appeals, and district courts in Taiwan.
I would discuss the problem facing in criminal cases while those cases actually use business judgment rule, and to analyze court verdicts. For example, whether court’s application or analysis to deal with the fact and issue is proper or not. Therefore, what we try to find out is that what kind of criminal cases are often used business judgment rule, and how to use it. Besides, I use this empirical result as basis to compare theory and cases. Last but not least, I try to think about the suitability of business judgment rule in criminal cases.
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