Fiduciary duty (受託義務):
- duty of loyalty (忠實義務)
- fair process (approval by noninterested directors) or else burden on directors to show entire fairness
- duty of care (
- business judgment rule
Duty of loyalty:
- The most important fiduciary duty is the duty of loyalty. The concept is simple: the decision makers within the company should act in the interests of the company, and not in their own interests.
- The easiest way to comply with this duty is not to engage in transactions that involve a conflict of interest. ("self-dealing" transactions)
- Most public companies prefer to obtain approval by noninterested directors, rather than face the challenge of proving entire fairness in court. The most common remedy is damages.
Duty of care:
- They do not have to make sensible decisions. They only have to show up, pay attention, and make a decision that is not completely irrational.
- The doctrine of noninterference is known as the business judgment rule.
- First, courts are bad at second-guessing in hindsight decisions that turned out poorly.
- Second, an investment in a business can turn out badly, for a whole host of reasons. Bad management decisions are only one of these reasons. They are a risk that shareholders knowingly assume.
- Third, some risky decisions will work out wonderfully, while others will work out terribly. If the directors risk being found personally liable for bad outcomes, they will be reluctant to take risks, and we will get fewer really good decisions also. We may not get better decisions on average, just more cautious decisions.
- 經濟部--商工行政法規檢索系統: https://gcis.nat.gov.tw/elaw/query/LawToLC.jsp?LAW_CO=0860625010&ART=23&DASH=0
- The Principal Fiduciary Duties of Boards of Directors: http://www.oecd.org/daf/ca/corporategovernanceprinciples/1872746.pdf