- 學位論文
經營判斷法則在法律與企業決策之運用
The Application of Business Judgment Rule in Law and Business Decision
摘要
近年來，實務上刑事判決中引述經營判斷法則（Business Judgment Rule）的案件日益增加，學術界亦多有著墨，尤其在和艦案新竹地院審理期間，曹興誠先生以經營判斷法則自我辯護，指經營判斷法則可以鼓勵有才能者勇於任事，且能避免法官陷入複雜的商業判斷；至於不適任的董事，應交由公司股東會決定去留，法院不必介入，更掀起各界廣泛討論。對此問題，究竟在刑事背信罪案件中，可否適用經營判斷法則作為論斷有罪與否的標準，學界、實務界呈現正反見解，更可謂是百家爭鳴。本研究乃從搜尋實務上現有刑事判決、學者發表期刊論文、瑞智公司、明基公司二個個案等加以整理、分析，在結論上贊同經營判斷法則可於刑事背信罪案件中適用，且跳脫法律人的框架，建議檢察官或法官站在企業經營者的角度，多多考量企業如基於競爭力的需要，而作出的經營決策判斷，給予正面的肯定，不宜以刑事背信罪追究。並對於經營判斷法則在實務上的應用，給予制度面建議司法機關應謹守刑法最後手段性及謙抑性原則、法官判決時宜多肯定經營判斷法則的適用；法律面建議完善民事賠償制度的立法、增訂「檢察機關辦理背信案件應行注意事項」；執行面建議建立檢察官評議制度、建立經營判斷法則事項檢查表。其次，企業每天面對大大小小的決策，但企業界在組織上往往不重視法律專業人員，決策時輕忽法律風險，以致於決策失敗時，除了經濟損失，又面臨司法訴訟。為降低法律風險，提升決策品質，乃認為經營判斷法則不僅可作為司法審查背信罪的標準，更可提早到企業作決策時的重要標準，成為企業決策過程中必經的檢視流程。在制度面建議企業決策時應諮詢專業法律人員；法律面建議企業決策時應評估法律風險；執行面建議企業決策時應考慮刑事案件可能對企業造成的影響。
並列摘要
In recent years rulings of criminal cases referring to Business Judgment Rule is increasing, which also draws attention among the academic circle. During the trial of the HJTC case at Hsinchu District Court, Mr. Cao Xing-cheng defended himself with Business Judgment Rule and argued that Business Judgment Rule encourages people with talent to take aggressive initiatives and save the judge from making complicate business decision, and the competency of a member of the board should be left to the discretion of the board of directors and should not be a concern of the court. His argument is ensued with intensive discussion among the public. The issue of permissibility of Business Judgment Rule as the criterion for the ruling of guilty or not guilty on criminal charge of breach of trust receives controversial and diversified comments from the academic and practitioners’ circles. This Study summarizes and analyzes available criminal case rulings, scholar dissertations published on periodicals, and two cases of Rechi and BenQ. The conclusion drawn favors Business Judgment Rule that it should be permissible on criminal charge of breach of trust and it allows legal professionals to think outside the box. It is recommended that prosecutors and judges alike should not only think from the aspect of business owners and take into consideration that enterprises must make businesses judgment in favor of competitiveness, but also give them positive approval instead of placing criminal charge of breach of trust on them. Regarding to practice of Business Judgment Rule, on the system side, it is recommended that judicial authorities should self-restrain on the ultima ratio of penalty and the principle of difference, and judges should favor the permissibility of Business Judgment Rule. On the legality side, it is recommended to improve civil indemnification legislation and revise and augment the Guidelines for Prosecutor Offices Processing Breach of Trust Cases. On the implementation side, it is recommended that a prosecutors’ performance appraisal system and a Business Judgment Rule checklist should be established. On the other hand, an enterprise makes decisions of various importances on a daily basis but shows little respect for legal professionals in its organization and neglects legal risks in its decision-making. When a decision fails, it causes not only economic loss, but also litigation. To reduce legal risk and improve decision-making quality, Business Judgment Rule not only serve as a criterion for the ruling on charge of breach of trust, but also an important standard for enterprise decision-making as a required process of enterprise decision-making. On the legal side, it is recommended that an enterprise should evaluate legal risk when making decisions. On the system side, it is recommended that an enterprise should consult with legal professionals when making decisions. On implementation side, it is recommended that an enterprise should take into account the impact of possible criminal charges.