Türk-Alman Üniversitesi Hukuk Fakültesi Dergisi

Yazarlar: Karen KLEİN

Konular:Hukuk

Anahtar Kelimeler:Business Judgment Rule,Liability of Management Board Members,Legal Judgment Rule,Compliance,Organizational Fault

Özet: The business judgment rule, which is based on the US jurisdiction, grants directors of a corporation a liability privilege for entrepreneurial decisions. It was adapted by the Bundesgerichtshof (German Federal Court of Justice) in 1997 and inserted in § 93 para. 1 sent. 2 AktG (German Stock Corporation Act) in 2005. Accordingly, members of the management board shall not be deemed to have violated the care of a diligent and conscientious manager, if they had good reason to assume that they were acting on the basis of adequate information for the benefit of the company at the time of taking the entrepreneurial decision. This article briefly addresses the development of the business judgment rule as well as its purpose before outlining its conditions and legal consequences. Although the business judgment rule is of great importance to business and legal practice, many questions remain unanswered. The current corporate law literature mainly discusses the criteria that have to be set for an entrepreneurial decision, how extensive the information as the basis of the board decision must be and to what extend a court has authority to control the entrepreneurial decision. Literature also disputes whether the liability privilege can be transferred to issues arising from an unclear legal situation („legal judgment rule“) or liability for compliance violations („organizational fault“).

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