Are Independent Directors Effective Monitors in Taiwan? --A Theoretical Analysis

Abstract

臺灣引進獨立董事制度後，改變了公司法以監察人為監督機關之內部治理設計。美國公司法學界普遍認為獨立董事制度有助公司治理之推展，但該制卻有本質之缺陷，導致無法完全發揮原被期待之監督功能。最根本性的問題是，如何能確定獨立董事是否真為「實質獨立」。在臺灣引進獨立董事後，除該制本質之缺陷外，臺灣獨立董事將面臨更多本土性之挑戰，尤其是在大股東環伺之商業環境下，獨立董事將難以展開拳腳。另一方面，資訊取得困難亦成為臺灣獨立董事有效監督之隱憂。因此，就目前臺灣法制與商業環境而論，本文認為獨立董事難以有效監督公司經營者，而能興利除弊，未來仍需進一步改革，始能竟其全功。

About a decade ago, Taiwan introduced the institution of independent directors, which has long been advocated as a good corporate governance practice in the United States of America (“U.S.”). At the time, the concept of independent directors then was a whole new legal idea in Taiwan that fundamentally changed the original intention behind the internal corporate governance system in the Taiwan Company Act in which supervisors were supposed to address oversight and to take action against the board of directors and managers. Traditionally, the U.S. corporate conventional wisdom argues that independent directors benefit companies in some aspects, but it is also believed that they could face some inherent limitations while carrying out their monitoring tasks. The most serious issue is how to ensure an independent director has true independence from management. In addition to the limitations that U.S. independent directors normally face, Taiwanese independent directors also encounter other constraints arising from characteristics of Taiwan’s business environment. This article argues that independent directors in Taiwan have few chances to rid themselves of the controlling shareholders’ influence. Even in the absence of such powerful shareholders, they would still encounter other difficulties in carrying out the monitoring tasks such as insufficient information. This article concludes that as a result, Taiwanese independent directors will function in a very limited way, and can hardly be effective monitors for Taiwanese companies under the current business and legal environment in Taiwan.