受託義務審查規則與舉證責任分配

Standard of Review and Burden of Proof in Fiduciary Scrutiny

在討論是否應於我國引進經營判斷法則時，論者有以該制度與我國舉證責任分配理論不符，為反對理由之一。為檢視此一論點之有效性，本文根據德拉瓦州案例法之發展，整理出目前彼邦對於經營判斷法則、整體公平標準及強化審查標準等受託義務審查規則及舉證責任分配情形，並將之置於我國舉證責任理論的脈絡下檢視，認為德拉瓦州所建立之審查規則體系，其舉證責任分配其實與我國之要件事實分類說原則上相契合，其中不同處，亦可以由證明度提高、表見證明及舉證責任轉換等角度，予以詮釋理解，其背後並有相對應的實體法價值判斷以為支持，而有其務實考量，亦非我國與既有民事法概念相齟齬，實無須將之視為異數看待。

It has been long argued under Taiwan law whether business judgment rule should be introduced into Taiwan legal system. Some commentators take the view against such proposal, arguing that business judgment rule is inconsistent with the current rule of burden of proof and thus should not be adopted under Taiwan legal system. However, such argument seems incomplete because it only focuses on the analysis of business judgment rule without taking into consideration the remaining two standard of review, namely entire fairness and enhanced scrutiny. In order to exam the validity of this argument, based on the current development of Delaware fiduciary case laws, this article conducts an exhaustive survey and provides a list of different types of standard of view in Delaware and the respective allocation of burden of proof thereunder, and review them in the context of the rule of burden of proof under Taiwan law. This article concludes that the Delaware standard of review system actually corresponds to the dominant theory regarding the allocation of the burden of proof (according to the category of element under Taiwan law). Although there are differences between Delaware standard of review and the dominant theory of burden of proof in Taiwan (such as the difficulty in overturning the presumption of business judgment rule, the use of procedural mechanism to change the standard of review, and the shift of allocation of entire fairness by using procedural mechanisms), such differences can be justified from the perspective of heightened standard of proof, prima facie proof and shift of burden of proof, with the support of substantial policy considerations. Furthermore, the spirit of Delaware standard of review actually echoes the fundamental concept in Taiwan civil law in Taiwan and thus need not be regarded as a outlier.