董事行為妥當性判斷,應在特定商業背景之中作出。勤勉義務可將商業判斷規則融入其中,以統一董事行為妥當性判斷規則。董事違反勤勉義務之判斷可采理性商人標準,通過理性人知識和能力的具體化,構建出理性商人形象,并重構行為作出之商業背景,進而判斷具體化的理性商人在重構的商業背景之中為個案董事所為行為時,是否有過失。董事違反勤勉義務之過失程度宜確定為重大過失,僅在董事有違反忠實義務的可能性時,方才降低過失程度的要求。

The judgment of appropriateness of directors’ behavior should be made in a specific business background. Business judgment rule can be incorporated in duty of care to unify the judgment rules of directors’ behavior. Reasonable businessman rules can be used to judge directors’ violation of duty of care. A reasonable businessman can be created via specifying a reasonable person’s knowledge and ability in order to determine whether he has negligence in making business decision under specific business circumstances. Grossly negligence should be appropriate concerning the fault of breaching one’s duty of care. Only when the director has the possibility of breaching his duty of loyalty can the requirement of the fault be reduced.