公司反收购中的董事受信义务初探

Abstract

In the case of anti-takeover transactions, board of directors of the target company is deeply involved in a situation of conflict of interests, which arouses our concern on whether the anti-takeover decisions made by such directors are always favorable to shareholders, especially minority shareholders. Therefore, fiduciary duties work as the recipe to prevent directors from derogating the true interests of shareholders and seeking their own interests instead. This article mainly discusses the judicial review standards of duty of care and duty of loyalty, which are business judgment rule and substantial equality rule respectively. Then in conjunction with anti-takeover cases, this paper discusses the adaptations of business judgment rule in the judicial practices of US, which give birth to another two rules: Unocal rule and Revlon rule. Lastly, in consideration of concrete situation of China, this paper suggests US model should be referred to and entrust the power of deciding the anti-takeover affairs to the board of directors. At the same time, the US business judgment rule and its adaptations should be transplanted into China as the applicable standard of People’s court to examine the decisions of board of directors in anti-takeover issues.