實質董事認定的變革及責任歸屬之重新建構

Abstract

我國公司法於2012年1月4日增訂公司法第8條第3項：「公開發行股票之公司之非董事，而實質上執行董事業務或實質控制公司之人事、財務或業務經營而實質指揮董事執行業務者，與本法董事同負民事、刑事及行政罰之責任。但政府為發展經濟、促進社會安定或其他增進公共利益等情形，對政府指派之董事所為之指揮，不適用之。」，此次修法前，董事認定採形式標準，且僅就法律上董事之責任定有明文，事實上及影子董事之法律責任付之闕如，造成實質控制者為規避董事責任而不願當選為董事，其藉由指揮操控人頭當選為董事，迂迴達到參與公司運作及牟取私利之目的，形成有權無責之情形。修法後，引進事實上董事與影子董事之概念，以使非法律上董事之人，卻實質上執行董事職務、或者實質控制而指揮公司董事行事者，必須負起與法律上董事負相同之法律責任。\n現行法下，事實上及影子董事之具體認定及責任歸屬成為我國實務無可避免之挑戰。惟本條項仍有不足及未臻明確之處，且與我國關係企業專章部分規定顯有扞格而有規範衝突之疑慮。是以，本文主要擬以英國法事實上及影子董事、美國法控制股東之相關法制及實務見解，輔以新加坡、香港及韓國法作為外國法之研究對象。本文嘗試重新解構及建構本條項，透過粗淺之探討，希冀能有助於我國實質董事法制規範更多元化之討論及發展，期能建立事實上董事及影子董事之認定標準及責任範圍，或可供將來實務運用上之參考。\n\n關鍵詞：法律上董事、事實上董事、影子董事、公司法第8條第3項、控制股東

Section 3 of the Article 8 of Taiwan`s Company Act (the “Company Act”) was amended on January 4, 2012. It provides that “For a company whose shares have been issued in public, a non-director who de facto conducts business of a director or de facto controls over the management of the personnel, financial or business operation of the company and de facto instructs a director to conduct business shall be liable for the civil, criminal and administrative liabilities as a director in this Act, provided, however, that such liabilities shall not apply to an instruction of the government to the director ap-pointed by the government for the purposes of economic development, promotion of social stability, or other circumstances which can promote public interests.ˮ Before this Company Act amended, the elements for a director appointed was according to the canonical representation which means only the De Jure Director would be considered as a responsible person but not the so-called “De Facto director” and “Shadow Director” were specifically regulated. As a result, such controllers were actually in charge of corporate management without taking any legal responsibilities. Worst of all, it might be even lead to the depletion of a company`s assets. After the amendment of the Company Act, the concept of De Facto Director and Shadow Director were included into the le-gal system in Taiwan. Therefore, any non-De Jure Director, who occupies the position as a director or person who provides advice for the company director will be deemed for taking responsibilities as a De Jure Director.\nUnder the Section 3 of Article 8 of Company Act recently, the identification and responsibilities of both De Facto Director and Shadow Director become the challenging problem in Taiwan. However, there are remaining some unsolved and uncertain issues in this Act. For example, some terms used in the amendment are not clear enough to prevent the interpretations controversy. Moreover, in some respects, they contradict some provisions under Chapter VI-I of the Company Act regulated by Affiliated Enter-prises. Consequently, we try to clarify these issues from all the aspect of comparative law by comparing the legal principle as well as the court verdicts of “De facto directors” and “Shadow directors” of the United Kingdom combining the “Controlling shareholders” with the Company Act of the United States, supplemented by the Acts of Singa-pore, Hong Kong and South Korea as the objects of foreign law in this study. We try to re-deconstruct and re-construct the Section 3 of Article 8 of the Company Act to inspire some thinking with regard to the development of the Company Act. To make the Section 3 of Article 8 become a clear standard to identify De Facto Director and Shadow Director and play a pivotal role for providing the responsibility scope. Hopefully, it will be effectively workable clinically in the near future.\n\nKeyword：De Jure Director, De facto Director, Shadow Director, Section 3 of the Article 8 of Taiwan`s Company Act, Controlling shareholder