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학술연구/단체지원/교육 등 연구자 활동을 지속하도록 DBpia가 지원하고 있어요.
커뮤니티
연구자들이 자신의 연구와 전문성을 널리 알리고, 새로운 협력의 기회를 만들 수 있는 네트워킹 공간이에요.
초록· 키워드
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The Business Judgement rule, although variously stated, may be expressed as a specific application of directorial standard of conduct to the situation where a business decision is made by disinterested and independent directors on an informed basis and with a good faith belief that the decision will benefit the corporation.
The rationale underlying the business judgement rule's judicial acknowledgment of a board of director's managerial prerogatives has been explained on four grounds. First, courts recognize that even disinterested, well - intentioned, informed directors can make decisions that, in hindsight, are improvident and cause the corporation to lose large amounts of money. By acknowledging this human fallibility, the rule encourages competent individuals to assume directorships. Second, the rule recognizes that business decision frequently entail risk, and thus provides directors of the board discretion they need in formulating dynamic and effective company policy without fear of judicial second - guessing. The rule recognizes that shareholders to the very real degree voluntarily undertake the risk of bad business judgement; investors need not buy stock, for investment markets offer and array of opportunities less vulnerable to mistakes in judgement by corporate officers. Third, the rule keeps courts from becoming enmeshed in complex corporate decision - making, a task that courts are admittedly ill - equipped to handle, since directors are, in most cases, more Qualified to make business decision than judges. Put it another way, the directors room rather than the courtroom is the appropriate forum for thrashing out purely business question. Fourth, finally, the business judgement rule ensures that directors rather than shareholders manage corporations. since if shareholders are granted the right to demand frequent judicial review of board decisions, the result would be to transfer ultimate decision - making authority from the board to any shareholder who is willing to sign a complaint. The Delaware Supreme Scout in Aronson v. Lewis [473 A. 2d 805 (Del. 1984)] , Smith v. Van Gorkom [ 493 A. 2d 946 (Del. 1985)] has repeatedly reaffirmed that the rule "is a presumption that in making a business decision the directors of a corporation acted on informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company." The business judgement rule presumes that each of the elements of the business judgement rule - (1) a business decision, (2) disinterestedness and independence, (3) due care, (4) good faith, and (5) no abuse of discretion - is present, and shields corporate decision - makers and their decisions from judicial second - guessing where this presumption is not overcome. Thus, if theses elements are present - and the case does not involve fraud, illegality, ultra cires conduct or waste of corporate assets, then the court will not second guess the merits of the decision. The business judgement rule is thus a tool of judicial review rather than a standard of conduct, and applies both in actions seeking to impose liability for money damages upon directors for their decisions and in actions seeking injunctive relief against particular board actions. A plaintiff challenging a business decision, not involving self - interest, bears the burden of rebutting the application of the business judgement rule.
The rationale underlying the business judgement rule's judicial acknowledgment of a board of director's managerial prerogatives has been explained on four grounds. First, courts recognize that even disinterested, well - intentioned, informed directors can make decisions that, in hindsight, are improvident and cause the corporation to lose large amounts of money. By acknowledging this human fallibility, the rule encourages competent individuals to assume directorships. Second, the rule recognizes that business decision frequently entail risk, and thus provides directors of the board discretion they need in formulating dynamic and effective company policy without fear of judicial second - guessing. The rule recognizes that shareholders to the very real degree voluntarily undertake the risk of bad business judgement; investors need not buy stock, for investment markets offer and array of opportunities less vulnerable to mistakes in judgement by corporate officers. Third, the rule keeps courts from becoming enmeshed in complex corporate decision - making, a task that courts are admittedly ill - equipped to handle, since directors are, in most cases, more Qualified to make business decision than judges. Put it another way, the directors room rather than the courtroom is the appropriate forum for thrashing out purely business question. Fourth, finally, the business judgement rule ensures that directors rather than shareholders manage corporations. since if shareholders are granted the right to demand frequent judicial review of board decisions, the result would be to transfer ultimate decision - making authority from the board to any shareholder who is willing to sign a complaint. The Delaware Supreme Scout in Aronson v. Lewis [473 A. 2d 805 (Del. 1984)] , Smith v. Van Gorkom [ 493 A. 2d 946 (Del. 1985)] has repeatedly reaffirmed that the rule "is a presumption that in making a business decision the directors of a corporation acted on informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company." The business judgement rule presumes that each of the elements of the business judgement rule - (1) a business decision, (2) disinterestedness and independence, (3) due care, (4) good faith, and (5) no abuse of discretion - is present, and shields corporate decision - makers and their decisions from judicial second - guessing where this presumption is not overcome. Thus, if theses elements are present - and the case does not involve fraud, illegality, ultra cires conduct or waste of corporate assets, then the court will not second guess the merits of the decision. The business judgement rule is thus a tool of judicial review rather than a standard of conduct, and applies both in actions seeking to impose liability for money damages upon directors for their decisions and in actions seeking injunctive relief against particular board actions. A plaintiff challenging a business decision, not involving self - interest, bears the burden of rebutting the application of the business judgement rule.
목차
Ⅱ. 미국 및 일본에서의 논의의 동향
Ⅲ. 경영판단의 원칙의 수용
Ⅳ. 결론
참고문헌
Abstract
참고문헌 (18)
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UCI(KEPA) : I410-ECN-0101-2009-366-014099918