股份有限公司董事報酬請求權之研究

Abstract

公司法第196條第1項雖有對於董事的報酬決定程序之規定，惟未經此一程序時，董事是否有報酬請求權？此一問題，我國實務及學說之見解紛呈，頗具爭議。若依據美國法制，董事之報酬原則上限於有明示約定時始能請求。若依據日本法制，通說認為未經法定程序者，董事無報酬請求權。本文認為只有在董事與公司原有約定報酬，股東會選任董事時未同時決議董事報酬，而董事在「就任前」便已向公司請求報酬時，才會產生董事有無報酬請求權之爭議。而依據民法第547條之規定，董事應可向公司主張報酬請求權。不過，若從立法論而言，似可考慮修改公司法，明定董事必有報酬，以建立良好的公司治理。

Although Article 196 I of the Company Act provides the determining procedure of a director’s compensation, may a director file a quantum meruit claim without this procedure? Regarding this question, practices and scholarship in Taiwan are in sharp disagreement. According to the U.S. legal regime, in order that a director may receive compensation, there must have been an express contract. According to the Japanese legal regime, the prevailing opinion is that without the legal procedure, a director cannot receive compensation. This study thinks that the issue whether a director has a quantum meruit claim only occurs in the following situation: a director had an agreement of receiving compensation with the company, he was elected as director at a shareholders’ meeting without adopting a resolution to give him compensation, he claimed compensation to company before assuming that post. According to Article 547 of Civil Law, a director should possess a right to claim compensation from the company. But, in order to establish good corporate governance, a better solution may be to modify the current Company Act so as to provide that a director should have a right to claim compensation.