影子董事與關係企業——多數股東權行使界限之另一面向

Abstract

二○一二年公司法修訂引進了影子董事及事實上董事之制度，對我國而言實屬一重大變革。影子董事主要為英國、澳洲及紐西蘭等大英國協之國家所採行，細究各該國家之成文法及判決不難發現我國新法有關影子董事之規定過於簡陋。\\r「公司董事慣習聽其指示或命令而為行為之人」乃影子董事於成文法上之常見定義，上述國家之判決致力於闡述其構成要件。從影子董事之控制力、指示之行使方式、指示之範圍、慣習之形成、義務及責任之範疇、甚至於法人董事之董事何時成為影子董事及母公司是否必然成為子公司之影子董事等皆有詳細討論。此外，何時應適用及應不適用影子董事之規定於法條中皆有明文。\\r相較之下，我國之簡單定義不足以處理影子董事之各種問題，未來可能引發極大爭議，關係企業就是一顯著例子。本文細究影子董事之要件、義務、責任及除外情形，並以我國法為例提出修法及解釋建議，希望可以為此新制提供適用之參考。

The introduction of the shadow director and the de facto director in the 2012 Company Law amendment is truly a material reform in our country. The concept of a shadow director has mainly been adopted in the U.K., Australia, New Zealand and other members of the Commonwealth of Nations. If one takes a close look at the statutes and judicial decisions of the counties mentioned above, it can be seen that our rules regarding shadow directors are relatively inadequate. “A person in accordance with whose directions or instructions the directors of the company are accustomed to act” is a common definition of a shadow director, and the above-mentioned countries all endeavor to illustrate its essential conditions. Related discussions include the ontrolling power of a shadow director, the mode and range of instructions, the formation of customary operations, the range of obligations, duties and liabilities, even the debate as to when a director would become a director of any company of which his company is a director, and whether a parent company would necessarily be a shadow director of its subsidiary. In addition, in what situation the rules of a shadow director would be or would not be applied is also expressly stated in the statute. Comparatively speaking, our simple definition of a shadow director is incapable of dealing with all related problems, and therefore it will probably cause significant issues in related future, e.g., issues related to affiliated enterprises. This article provides an in-depth study of the identification, obligations, liabilities and the exceptions in relation to the shadow director and provides some advice for further amendment and explanation. The author believes that the work could serve as a useful reference for the application of the new company law.