董事失格制度之研究-以英國董事失格制度為核心

Abstract

本文旨於探討「我國上市櫃及興櫃公司董事淘汰制度是否能藉由公權力的介入而提升效率」之問題。除了整理我國公司法中決議解任、裁判解任與當然解任目前遇到的問題外，並從新修正投保法第10-1條之解任訴訟、金融業董事淘汰制度，到英國董事失格制度，針對公權力介入的機制，透過了解法規架構與實務運作的方式，嘗試找到提升現行公司董事制度效率的方法。\n\n經過本文各章的探尋，除了驗證司法審判漫長的程序確實是董事淘汰制度的不效率的原因之一外，亦發現由於我國現行制度中董事解任之法律效果缺乏彈性，雙方當事人沒有協調空間，使得既有的和解及調解制度無法發揮作用。\n\n因此，本文嘗試針對「上市櫃及興櫃公司董事淘汰制度」提出修法建議，在解決司法審理過於耗時的部分，除了將既有的當然解任改成主管機關「羈束處分」之事項外，亦增加主管機關做成「裁量處分」予以解任之途徑；在協調空間部分，本文主張增加「失格期間與範圍」之法律效果，既可以使之符合比例原則，亦可增加法律效果適用之彈性，擴大協調空間，使和解與調解制度有機會得以發揮作用。

In this thesis, the author is trying to find out that whether the intervention of Executive Yuan could fix the problem of disqualification and removal of company directors of an exchange-listed, OTC-listed, or emerging stock company in Taiwan recently. To build the background of this problem, the author scan the reality of present norm of disqualification and removal of company directors, such as the article 199, 200 in Companies Act, the article 10-1 in Securities Investor and Futures Trader Protection Act which amended and effected since August, 2020. The conclusion, as most researchers agreed, is that the lack of efficiency, which means long duration of the process and great difficulty of removal, is the main pain point of this norm in operation.\n\nSince the efficiency is what the executive power good at, the author refered to the existing supervicing norm by the government, including the financial supervisory rules in Taiwan and Disqualificaiton of Company Directors (CDDA) of UK, as the role model for optimizing the present norm. Regarding to the financial supervicing in Taiwan, in which the government has the right to expel the unaccurate directors from the company by administrative sanctions, the author not only analyse the latest amendment of these regulation, but also collect the director removal cases and show the statistics. In the part of CDDA of UK, in which the government has the right to make an application to the court of disqualification order against the unaccurated person and so on, rether than discussing about what kinds of fact satisfied the condition of disqualification as most of resent research in Taiwan does, the author is focusing on the processing matters and the way of making disqualification effects, such as process condition and Disqualification Undertaking.\n\nAfter exploring above fact and regulations, the author found that, as the result, the intervention of government could speed up the process of removal and disqualification of company directors indeed, but its legitimacy based on Publich Interests. Meanwhile, considering to the difference of legal system between Taiwan and UK, the author suggested that there are two direction for modifying the present norm:\nFirst, allowing the government to expel the unaccurated person from the position of company director, owing to accelerating the procees. Secondly, introducing the term and range of disqualification from the CDDA in UK, in order to urge counterparties to reconciliate while the process and closed the case quicker.