| 摘要: | 我國在股東有限責任規定的制度下，形成企業所有與企業經營分離的大型公司產生，所有與經營分離可以提升公司運作的效率，因此負責公司經營決策之董事，對於公司應踐行之受任人義務內涵，即成為公司法制上最受重視的問題。然公司負責人董事義務之規定，我國引進了英美法上受任人義務（Fiduciary Duty）之概念，而關於受任人義務之內涵應如何闡釋，並未有明確之說明，因此即有探究之餘地。
然而，在引進受任人義務之同時，對於受任人義務之司法審查，是否同時引進美國法上之經營判斷法則（Business Judgment Rule），則未有規定。經營判斷法則係指推定公司董事無利害關係且具有獨立性，而在授權範圍內，於充分資訊掌握下，以善意且誠實的相信其判斷是對公司與股東具有最大的利益，而所做之決策，因此不受法院事後審查，若原告欲提起訴訟，則應以相關事證說服法院推翻以上之推定保護。而在我國是否得以援引經營判斷法則作為判斷之依據以及其應如何適用，均為本文探究之重點。
再者，企業併購活動近年來在我國日益活絡，而我國企業併購法僅針對公司董事處理併購事宜之義務做簡略性的原則規範，但在判斷董事於企業併購時之受任人義務，是否履行其義務，進而定其違反義務之法律效果上，仍欠缺一套司法審查基準。而身為公司負責人之董事，於企業併購的過程中係居於重要的地位，其採取之防禦措施及何種方法手段，均屬董事會之經營判斷，惟其在企業併購過程中總是存在直接或間接的切身利害關係，此時，其是否可主張經營判斷法則而加以免責，而司法審查之密度是否因而有所不同，準此，本文藉由分析、整理美國法院之實務案例發展，進而提供我國對於董事受任人義務司法審查之參考。
On the stockholder’s limited liability system of Taiwan, the formation of corporate and business separation large companies to produce, and separation can improve the efficiency of company operations and management, in charge of the directors of the company's operating policy decisions of the company should practice fiduciary duty, that is the most important problems in the company's legal system. However, the company is responsible for the provisions of the obligations of directors of the country to introduce the common law concept of fiduciary duty, in regard to concept of fiduciary duty how to explain, did not have a clear explanation of that to explore it.
However, while the introduction of the fiduciary duty for judicial review of business judgment rule, is not dealt with. Business judgment rule is a presumption that in making a business decision, the directors of a corporation acted on an informed basis with disinterested and independence, in good faith and in the honest belief that the action taken was in the best interests of the company. Thus, the party attacking a board decision as uninformed must rebut the presumption that its business judgment was an informed one. Further, rebuttal typically requires a showing that the defendants violated duty of care or loyalty. In Taiwan whether it be to invoke the business judgment rule as the basis of the judgment and how to apply, are the focus explored in this thesis.
In recent years, merger and acquisition activities become increasingly active in Taiwan, while Merger and Acquisition Act is only for company directors to deal with the obligation to do the simple principle of specification of mergers and acquisitions matters. But as to the judgment of the fiduciary duty of directors under mergers and acquisitions, compliance with its obligations, and given legal effect of a violation of obligations, those still lack the standard of judicial review. As the directors are the company's responsible persons, taking the role of an important position during the process of mergers and acquisitions, the defensive measures taken and what methods and means, are the board of directors of business judgment, although there is always a process of mergers and acquisitions, directly or indirect conflict of interest, whether it may be argued that the business judgment rule to the disclaimer, the density of the judicial review has resulted in a different. Therefore, by analyzing, sorting the development of practical cases of the United States Court to provide the reference of the fiduciary duty of directors of judicial review in Taiwan. |
