Business Judgment Rule Research Articles

Shielding Directing Minds of Companies against Liability: The Business Judgment Rule and the Duty of Care in Ghana

Shielding Directing Minds of Companies against Liability: The Business Judgment Rule and the Duty of Care in Ghana

Dell Appraisal and the Business Judgement Rule

Dell Appraisal and the Business Judgement Rule

The origins and essence of the business judgment rule

The origins and essence of the business judgment rule

Konsep Business Judgement Rule dalam Perspektif Maṣlaḥah Mursalah

This research aims to analyze the benefits of implementing the Business Judgment Rule concept when viewed from the perspective of maṣlaḥah murlah. The method used in this research is a qualitative research method with a normative juridical approach which makes the law the center of its study with the aim of providing legal arguments as a basis for whether the application of the Business Judgment Rule doctrine can be detrimental or not if viewed from the perspective of maṣlaḥah murlah which is then processed. into descriptive analysis. The results of this research show that the concept of the Business Judgment Rule doctrine is a concept that provides information to company directors regarding business decisions by considering various factors, namely the existence of good faith, prudence and accountability. Apart from that, the Business Judgment Rule doctrine has been widely used in several cases, especially in Indonesia. This means that the Business Judgment Rule doctrine, if seen from the maṣlaḥah murlah's point of view, does indeed bring benefits to the point of being a reference in a trial, even though in its implementation there is still a lack of socialization and education regarding the Business Judgment Rule doctrine within the scope of institutions or law enforcement officials.

Analisis Penerapan Doktrin Business Judgment Rule Terhadap Keputusan Direktur Utama PT Krakatau Steel Tbk Dalam Kasus Pembangunan Blast Furnace Complex

In business activities in the form of a Company, there are often legal problems involving directors as a result of the decisions and policies they make in carrying out their duties and authority in the company. The Board of Directors is one of the most important organs in a Limited Liability Company whose duty is to run the company as stated in Law Number 40 of 2007 (UU PT) concerning Limited Liability Companies. In the event of a loss caused by the decision or policy, the board of directors can be sued personally either criminally or civilly. This research aims to analyze the case of former President Director of PT Krakatau Steel (KS) Fazwar Bujang in making decisions on the construction of the Blast Furnace Complex plant in 2011 which is considered to have harmed the state of Rp 2.3 trillion and USD 292 or up to Rp 6 trillion and has benefited the MCC Ceri consortium, a company from China and PT Krakatau Engineering and others. The first result shows that the business judgment rule doctrine is a concept in corporate law that provides protection to company directors regarding the decisions and policies they make, to ensure that directors can make decisions based on good faith, prudence, and the best interests of the company without having to be personally liable for losses that may arise from business decisions. In Indonesia, the business judgment rule doctrine is only regulated in UU PT, but it has not been regulated in the law completely. Second, in the case of the construction of PT Krakatau Steel's Blast Furnace Complex, the business judgment rule cannot be applied because the business policies taken do not meet the requirements of the business judgment rule stipulated in Article 97 paragraph (3) of the UU PT.

The Considerations of the Panel of Judges in Rejecting the Business Judgment Rule Principles in Corruption Crime Case Decisions of PT. Asuransi Jiwasraya

The aim of this study is that to examine one of the corruption cases of PT. Asuransi Jiwasraya which focuses on the considerations of the panel of judges in rejecting the principles of the Business Judgment Rule. The method used in this study was a normative legal research method with a statutory approach and a case approach. The result of this study shows that PT. Asuransi Jiwasraya is legally and convincingly proven guilty of committing a criminal act of corruption which is committed by the directors together with the result of the judge's refusal to apply the principles of the Business Judgment Rule. It is shown based on the juridical facts from Decision Number: 32/PID.SUS-TPK/2020/PN.JKT.PST that the substance of the actions of the defendant of the director of PT. Asuransi Jiwasyara cannot be seen to be based on good faith and it is not prioritizing the prudential principle given the fact that the directors actually benefit themselves and not in the interests of the company. Therefore, the directors of PT. Asuransi Jiwasyara can be held personally responsible for failing to conduct the company's fiduciary duties and causing state losses so that the defendant's actions to obtain protection under the Business Judgment Rule should be set aside.

The Reconstruction of the Implementation from Business Judgment Rule Doctrine in Individual Limited Liability Companies: A Progressive Legal Review

Introduction: Individual Company is part of a legal reform which is based on efforts to empower small and medium enterprises. Individual Company are intended to empower the community's economy so that the leaders of individual Company need to receive protection through the business judgment rule doctrine.Purposes of the Research: This study aims to formulate a legal prescription related to the implementation of the doctrine in the conception of the business judgment rule in individual companies in terms of a progressive legal perspective.Methods of the Research: Normative law with a concept and statutory approach.Results of the Research: The relevance of the implementation of the business judgment rule doctrine for individual company can also increase the competitiveness of individual company because it can increase innovation from the leaders of individual company to be more optimal and maximal in managing individual company and not be afraid of the various risks that exist. Viewed from a progressive legal perspective, the reconstruction of the implementation of the business judgment rule doctrine for individual company can be carried out through analogical legal constructions because individual company and are generally the same in substance. In order to optimize the implementation of the business judgment rule doctrine for individual company, it is necessary to establish special rules governing guidelines and instructions in implementing the business judgment rule doctrine for individual company.

Business Judgment Rule in Colombia: an Approach from Law & Economics

La Business Judgment Rule (BJR) es una regla desarrollada por la jurisprudencia estadounidense que establece que los jueces respetarán las decisiones de negocio de los administradores cuando estos hayan tomado una decisión informada, en el mejor interés de la compañía y sin violar la ley o sus deberes. Este artículo es producto de la revisión de la aplicación de la BJR en Colombia y de los intentos de consagrarla expresamente en la ley. Además, analiza las implicaciones económicas de su adopción y demuestra, mediante una metodología cualitativa y desde el análisis económico del derecho, sus importantes beneficios macroeconómicos y microeconómicos.

Doctrin Business Judgment Rule Analysis as an Effort to Protect the Law of Directors of Limited Liability Companies in Indonesia and the United States

The provisions and implementation of BJR in Indonesia and the United States need to be studied because the latest Company Laws of both countries have codified the principles of BJR generated by court practice so far where BJR elements are regulated imitatively in the Company Law and accompanied by an explanation of the concept of the core elements of BJR. The formulation of the problems in writing this journal are 1) How are the regulations governing the application of the business judgment rule in Indonesia and the United States? 2) how is the application of the business judgment rule principle as a legal protection effort against directors in Indonesia and the United States? The research method used in this journal is normative juridical research with qualitative data analysis. The results showed that 1) regulations governing the application of the business judgment rule in Indonesia are regulated in Law Number 40 of 2007 concerning limited liability companies and OJK Regulation Number 33 / PJOK.04 / 2014 related to BJR which provides protection for directors and commissioners in carrying out their duties are sufficient. Meanwhile, regulations governing the application of the business judgment rule in the United States are regulated in the MBCA 2016. 2) The application of the business judgment rule principle as an effort to protect the law against directors in Indonesia can be applied to protect directors from legal liability as long as there are no elements of fraud, conflict of interest, unlawful acts and intentional misconduct as in the case of Decision Number 121 K/Pid.Sus/2020. Meanwhile, the application of the business judgment rule principle as an effort to protect the law against directors in the United States in accordance with the scope of the directors' responsibilities as in the Disney dispute case, Delaware Supreme Court.

Urgency of Regulation of Business Judgment Rule As A Reason For Criminal Deletion In Criminal Acts of Corruption

Urgency of Regulation of Business Judgment Rule As A Reason For Criminal Deletion In Criminal Acts of Corruption

이사의 배임죄와 경영판단원칙에 관한 연구

Regarding the crime of breach of trust, various controversies have been raised, from conflict over the nature of the crime. In particular, this controversy is further amplified when charges of breach of trust are applied to directors who perform work involving risk. Accordingly, this study examines the breach of trust systems in foreign countries 99and Korea from a comparative legal perspective. Germany, Japan, and France have breach of trust provisions, while the United States punishes breach of duty by mail fraud, and the United Kingdom punishes breach of duty by fraud. When it comes to breach of trust, the broad scope of application or ambiguous requirements are commonly pointed out. This is because the crime of breach of trust emerged to criminally regulate various acts that betray a relationship of trust. And these characteristics of breach of trust pose significant problems in corporate management.
 Corporate directors have a fiduciary duty. However, when determining a director's violation of fiduciary duty, the nature of the business judgment must be taken into consideration in order for the director to actively perform his role. Although there were differences from country to country in the way it was accepted as a legal theory, its effectiveness, and whether it was codified, it was accepted in most legal systems. However, since it is a theory in the field of commercial law, it needs to be cautious when introduced in the criminal system. However, it must be accepted for an unified legal order, and the business judgment rule is applied to breach of trust in Germany and Japan as well. In today's business environment, clear standards for legal responsibility must be presented through business judgment rule for creative business activities of entrepreneurs.

Granice dopuszczalnego ryzyka gospodarczego wyznaczonego zasadą business judgment rule w świetle oceny znamion przestępstwa niegospodarności

This study is a presentation of the business judgment rule, which takes into account acting within the framework of legitimate economic risk as one of the prerequisites for the possibility of excluding legal liability for damage to a capital company. It is also worth noting that this rule is presented as a reference point in assessing the elements of the crime of mismanagement.

The Scope of the Business Judgment Rule and its Relation to the Fiduciary Duties of Company Directors

Due to the dynamic and ever-changing nature of the corporate field, it is impossible to consistently ensure that the business entity will get guaranteed income from its business activities and that all corporate decisions made by the director will be beneficial to the company.
 If the company directors were to be held responsible for any decision that did not result in a profit for the company, this would limit their freedom of action and discourage them from taking risky steps.
 The main subject of this article is the Business Judgment Rule, which stipulates that a company director has the authority to make bad (unprofitable) decisions within specific legal limits without being held accountable for them.
 Furthermore, an appropriate balance must be maintained in the legal system between the freedom of the corporate directors under the business judgment rule and the risk of being held accountable for dishonest activities and unreasonable steps taken by them.

Implementation of the Principle of Business Judgement Rule Doctrine to State-Owned Companies as an Effort to Protect Directors in Good Faith

<p><em>The Business Judgement Rule is a doctrine that protects Directors in good faith for the Company's losses. The point is that as long as the Board of Directors acts in good faith and solely for the Company's benefit. However, it turns out that the Company still suffers losses. It does not necessarily become the burden of the Board of Directors personal responsibility. Therefore, the Board of Directors cannot be held responsible for the Company's losses if the Board of Directors, in carrying out actions, has fulfilled all its obligations with the principles of good corporate Governance (GCG). If all GCG obligations and principles have been fulfilled, the Board of Directors is categorized as having good faith and cannot be declared wrong. The results of the author's study, in the context of the Business Judgment Rule Doctrine, the losses incurred are normal or reasonable business losses, and therefore the Company is responsible. And no one can be punished if there is no mistake. With the background of the Constitutional Court Decision Number </em><em>0</em><em>1/PHPUPres/XVII/2</em><em>0</em><em>19 (Constitutional Court Decision </em><em>0</em><em>1) and two Supreme Court Decisions, the author tries to examine in more detail related to Decision No. 3849/K/Pid.Sus/2</em><em>0</em><em>19 dated December 2, 2</em><em>0</em><em>19, on behalf of Defendant Frederick ST Siahaan (former Finance Director of Pertamina) / (Supreme Court Decision 3849) and Decision No. 121K/Pid.Sus/2</em><em>0</em><em>2</em><em>0</em><em> dated March 9, 2</em><em>020</em><em>, on behalf of Defendant Karen Agustiawan (former President Director of Pertamina)</em><em>.</em></p>

The Liability of Corporate Governance Bodies as a Philosophical-Legal Category

In the light of philosophy of law given scientific research is devoted to the disclosure of the essence and content of corporate liability, the identification of the features of the liability of corporate management bodies and the presentation of proposals for solving emerging problems. The article examines the issues of corporate liability, proposes its definition, and analyzes the features inherent in corporate liability in venture joint-stock companies. The scope of research embraces concepts, such as fiduciary duties (duty of care, duty of loyalty, the requirement for awareness and not allowing conflict of interests), business judgment rule, as well as the adverse effects of corporate offenses, corporate liability measures and specifics of liability applicable to venture joint stock companies. As a result, the concept of corporate liability was given, as well as the features characterizing such liability in venture joint stock companies were highlighted.

Observation of Bank Credit Review from the Perspective of Business Judgment Rule

Observation of Bank Credit Review from the Perspective of Business Judgment Rule

The Business Judgment Rule, the Public Interest Powers, and the “Fair and Reasonable” Test: Fellow Travellers or Ships in the Night?

The Business Judgment Rule, the Public Interest Powers, and the “Fair and Reasonable” Test: Fellow Travellers or Ships in the Night?

CORPORATE CRIMINAL LIABILITY RELATED TO THE BUSINESS JUDGMENT RULE DOCTRINE

This article will explain Corporate Criminal Liability related to the Business Judgment Rule doctrine. There are 2 (two) fundamental questions that are the object of research, first: to what extent is Corporate Criminal Liability related to the Business Judgment Rule doctrine, second: to what extent is the Business Judgment Rule doctrine applied in Indonesia? This article uses normative research in the form of regulations, conceptual, comparative approaches, cases, and interviews. This study emphasizes the interpretation and construction of law to obtain several legal norms, conceptions, lists of regulations, and their implementation in real situations. This research shows that Corporate Criminal Liability is related to the Business Judgment Rule doctrine and the application of the Business Judgment Rule doctrine in Indonesia as in the Law of the Republic of Indonesia Number 40 of 2007 concerning Limited Liability Companies, Article 97 paragraph (5) reads: Members of the Board of Directors cannot be held accountable for losses as referred to in paragraph (3) if it can prove: a. the loss is not due to his fault or negligence; b. has conducted management in good faith and prudence for the benefit and by the aims and objectives of the Company; c. does not have a conflict of interest, either directly or indirectly, for management actions that result in losses; and d. have taken action to prevent the loss from arising or continuing. Of the 4 (four) conditions outlined in the Law above, this is a requirement that must be met if the Business Judgment Rule doctrine is to be applied in Indonesia.

The Ambiguity Application of Business Judgment Rule Doctrine As Director Immunity Right in the Company Law (Analysis of Supreme Court Verdict No 121k/Pid.Sus/2020)

Director is personally liable for the company's losses if proven guilty or negligent in carrying out his duties and may be personally sued by the shareholder as a result of his negligence or mistake in carrying out the management of the company which causes the company to suffer losses. This surely emits fear for Directors and hinders them in making important decisions for the Company. Essentially in carrying out their duties, Directors are always faced with uncertain so that fear of threats to the director’s personal liability is one of the factors that reduces performance. This research uses normative-empiric research by analyzing the written law from such various aspects as theory, history, philosophy, comparison, structure and composition, scope and material, consistency, general explanation, and article by article, formality, and binding power of law, and mainly BJR norm application in the Supreme Court Verdict Number 121K/PID.SUS/2020
 The results of this research shows that Judges in the Supreme Court Decision Number 121K/PID.SUS/2020 didn’t consider the criteria for "readiness of information" and "the criteria for taking action to prevent continued losses" which are the essential criterias of the business judgment rule but only considered PT Pertamina has an asset impairment, PT Pertamina Hulu Energi is a subsidiary of a state-owned Enterprise, the Defendant (incasu Karen Agustiawan) has obtained permission from the Board of Commissioners, and the business decision doesn’t contain elements of fraud, conflict of interest, unlawful acts and intentional errors, however these considerations create ambiguity and potential new legal disputes. because the actions of the Defendant (incasu Karen Agustiawan) have fulfilled all elements of the business judgment rule in Article 97 paragraph (5) of the Company Law, although the legal considerations of the Panel of Judges are incomplete, the business judgment rule can still be applied in the Supreme Court Verdict Number 121K/PID.SUS/2020.

RESPONSIBILITY OF MAJORITY SHAREHOLDERS IN ADOPTING LIMITED LIABILITY COMPANY POLICIES AFFECTING MINORITY SHAREHOLDERS IN TERMS OF BUSINESS JUDGMENT RULE AND GOOD FAITH PRINCIPLES

In an increasingly complex world, humans frequently do business not only alone but more often in groups which is very profitable because it can produce enough significant capital. One form of the joint venture is a limited liability company (LLC), a business with capital divided into shares. This shared ownership can determine the policy direction in the LLC, and there is a majority shareholder. The policies taken by the majority shareholder can sometimes harm the company if the shareholder does not use good faith. Law No. 40 of 2007 on LLCs does not regulate good faith in the majority shareholder. This ambiguity can make the majority shareholder to harm the minority shareholder because of the bad faith made by the majority shareholder toward the assessment or policymaking in the LLC that the business judgment rule principles are the responsibility of the majority shareholder. This research aims to know and understand the majority shareholder's responsibilities by looking at the aspect of good faith in policy-making in the LLC and applying the business judgment rule principles in policymaking by the majority shareholder so as not to the detriment of the minority shareholders. This research used normative juridical research methods using literature as the primary material to explore information in applying business judgment rules in several countries. Common law countries first proposed the principle of business judgment rule. Indonesia absorbed this principle incorporated into Law No. 40 of 2007 on LLCs, where the implementation of this principle concerns only the management, in this case, the director, but not the shareholders. Keywords : Business Judgment Rule, Good Faith, Majority Shareholder, Responsibility DOI： https://doi.org/10.35741/issn.0258-2724.58.2.25