利用者:加藤勝憲/注意義務（ビジネス団体）

米国の法人および事業団体法（特にデラウェア州法および改訂モデル事業会社法）では、注意義務は取締役が法人に対して負う受託者義務の一部であり、受託者義務の他の側面は、取締役の忠実義務と（場合によっては）信義誠実義務である。

In United States corporation and business association law (particularly Delaware law and the Revised Model Business Corporation Act), a duty of care is part of the fiduciary duty owed to a corporation by its directors. The other aspects of fiduciary duty are a director's duty of loyalty and (possibly) duty of good faith.

簡単に言えば、取締役は事業運営において適切な経営判断を下し、通常の注意と慎重さを払う義務を負っている。取締役は、同様の状況下で普通の人が払うであろう注意を払い、誠実に、そして会社の最善の利益のために行動しなければならない。

Put simply, a director owes a duty to exercise good business judgment and to use ordinary care and prudence in the operation of the business. They must discharge their actions in good faith and in the best interest of the corporation, exercising the care an ordinary person would use under similar circumstances.

取締役の決定は、これらの義務のいずれかに違反した場合、または決定が無駄を構成しない限り、通常はビジネス判断ルールによって保護される。受託者義務に違反した場合、通常は取締役の決定はビジネス判断の保護から外され、取締役は完全な公平性を示すことが求められる。

Directors' decisions are typically protected under the business judgment rule, unless they breach one of these duties or unless the decision constitutes waste. A breach of fiduciary duty will typically remove a director's decision from business judgment protection and require that the director show entire fairness.

Waste

Directors have a duty not to waste corporate assets by overpaying for property or employment services. Thus the definition of waste is an exchange so one-sided that no business person of ordinary, sound judgment could conclude the corporation has received adequate consideration. This is difficult to prove in a court of law.

Case law

The duty of care has been set out or clarified in a number of decisions. Among the important duty of care cases are:

Smith v. Van Gorkom (setting out duty to be reasonably informed in decision-making).

Caremark, Unocal Corp. v. Mesa Petroleum Co., Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc. (setting out duty of supervision and knowledge of company finances).

Statutes

The Duty of Care is set out in the Model Business Corporation act sections 8.30 and 8.31. There is no statutory codification of the Duty of Care in the Delaware General Corporation Law.

Exculpation

Both Delaware and the Model Act allow for directors to be exculpated for some breaches of the duty of care. The exculpation provisions are found in Delaware General Corporate Law section 102(b)(7) and in Model Act section 2.02(b)(4).

Criticisms

It is difficult for a director to be found in breach of this duty as the business judgment presumption insulates directors from much of their liability. There is little accountability for corporate directors to shareholders, although some still exists.

As an example, a director for Disney was let go after 14 months of work with about $150MM in compensation, more than his entire employment contract. In Brehm v. Eisner, a Delaware Supreme Court decision from 2000, the Court found that the Business Judgment Rule shielded the Board, which the Court found to have exercised bad business judgment, since it essentially complied with the Van Gorkom procedural requirement of informing themselves via an expert before approving the severance package. Thus the rule seems to protect even terrible business decisions from judicial review.

The counterargument is that shareholders are free to sell their stocks in the open market. Of course, some bad business decisions by the board may well affect the shareholders' ability to do so. Note, however, that this case was decided under Delaware's rather extreme codification of the Business Judgment Rule, §102(b)(7), which allows the Corporation to shield its board members from liability for almost anything short of outright bad faith.

References

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