Naslov
Question of Entrepreneurial Decision: The Evidence from Croatian Law

Autori
Brnabić, Ratko

Izvornik
Economic and Social Development, International Scientific Conference on Economic and Social Development: The Legal Challenges of Modern World (1849-7535) 4 (2018), 31; 329-336

Vrsta, podvrsta i kategorija rada
Radovi u časopisima, članak, znanstveni

Ključne riječi
Business Judgment Rule, Entrepreneurial decisions, Liabilities of the Parties, Corporations, Company's interests.

Sažetak
Board liability is a topic that is intensively discussed in jurisprudence. The primary task of the managing director is not only to ensure a constant return on the capital invested but, albeit as a custodian of foreign assets, to run a business and to make the necessary entrepreneurial decisions. Entrepreneurial decisions always carry the risk of failure no matter how elaborately and meticulously are executed. Furthermore, in the majority of cases, there is not "the" right decision. An entrepreneurial discretion of the managing director exists as far as no instructions of the shareholders are present, . Therefore, directors are given a liability-free scope for entrepreneurial decisions based on the model of the "Business Judgment Rule" from the American Law. The Business Judgment Rule applies to business decisions only. An entrepreneurial decision is a decision of the management in matters of the management, which is not predetermined by the law, the statutes or instructions of the shareholders' meeting. Decision that is bound by the strict legal norm is not an entrepreneurial one. The entrepreneurial decision is characterized by the following: In the context of an entrepreneurial decision, the managing director, in the given situation, selects among various actually possible and legally permissible action alternatives. At the time of the decision, it is not yet clear whether the chosen alternative will be the most economically advantageous. The managing director is therefore required to make a prognosis. The subsequent assessment of the behaviour of the managing director also must be based on this ex-ante perspective. The decision of the managing director must be objectively comprehensible. In Croatia, the requirements of the liability of a member of the company for the obligations of the company are prescribed by the Croatian Companies Act in the provision of Art. 252. The Companies Act prescribes that the board members must conduct the business of the company with the care of an orderly and sound businessman and keep the business secret of the company. A member of the board of directors does not act in contravention of the obligation to conduct the business of a company if it can reasonably assume, when making an entrepreneurial decision, that it acts for the benefit of the company on the basis of appropriate information. This paper will shed some light on Croatian case law concerning the Institute of "Business Judgment Rule".

Izvorni jezik
Hrvatski

Znanstvena područja
Pravo

POVEZANOST RADA