- 學位論文
銀行授信貸款注意義務之實證研究
Empirical Study on the Duty of Care in Banking
摘要
銀行授信貸款注意義務之核心內涵在於授信風險之評估，其評估結果將影響到是否核貸、核貸金額若干等決定，本質上即係專業之商業判斷，即便事後形成呆帳，法院仍不得遽認分行經理在授信決定上有過失。 有關違反此類注意義務之認定標準，與其採用充滿主觀價值判斷色彩之「授信5P原則」，不如採用「商業判斷法則」作為認定標準，蓋同一法院在前階段關於5項推定要件是否具備之認定，將拘束其在後階段之心證，故實質上兼有行為準則性質。此一觀點固然與美國司法實務運作有所出入，惟查：我國司法實務上有些判決確已將「商業判斷法則」之理論基礎，作為相關認定之判決理由。 本論文透過我國各級法院民事判決之實證研究，嘗試分析此類注意義務之主要判決理由，並設法將其類型化。最終，本論文將前揭類型化之判決理由轉換成「商業判斷法則」概念，其目的在於建立穩定之認定標準，以供參考。
並列摘要
The estimate of credit risk is the core concept of the duty of care on banking, the conclusion will influence the decisions of the loan application to be approved or not and the amount of the approved loan. The aforesaid decisions essentially are professional business judgments, and the court shall not consider the manager of bank branch is negligent of the decisions on credit based on the result of bad debt. Concerning to the criterion of such the duty of care, adopting the Business Judgment Rule (“BJR”) as the criterion would be better than the Five Credit Administration Principles that includes subjective appraisals. The reason is that the consideration of the five constructive factors of BJR by the court at the earlier stage will restrain the same court at the later stage of the same case, namely BJR also is a standard of conduct in reality. Although such a contention is different from the practice of the court in USA, several civil judgments of the courts in Taiwan have adopted the theoretical foundations of BJR as the reasons of relevant considerations. This thesis tries to analyze the major reasons of civil judgments on such the duty of care though the empirical study of civil judgments in Taiwan, and desires to class these reasons as several types. Finally, this thesis translates the typed reasons into the concepts of BJR, and the purpose of the aforesaid translation is to establish a stable criterion for reference.