| 摘要: | 我國公司法第23條於2001年11月份修訂，特予增列第1項之條文規定：「公司負責人應忠實執行業務並盡善良管理人之注意義務，如有違反致公司受有損害者，負損害賠償責任。」；按其立法理由揭示即知，係為引進英美法下，公司董事負有受任人義務（fiduciary duty)，係指董事應將公司利益置於自身利益之上，期避免發生利益衝突或爭議之情事，包括「忠實義務」（ duty of loyalty）與「注意義務」（ duty of care） 。此次修訂該條文明確規定，為公司負責人應踐行對公司之忠實義務與注意義務。惟卻未將配套「 商業判斷原則 」（ business judgment rule，簡稱BJR） 引進，致使我國實務界於運用該條文法律時，與其法之源頭有顯著差異性，甚至有誤解其原由之內涵。在法律於未明文規定之前，是否得加以適用？法院自當不得援引商業判斷原則免除董事行為的責任，應而是否有引進商業判斷原則的必要性? 然實務與學說見解上皆有著出入與分歧。再則就修法後增列之忠實義務與注意義務的內涵，及規範與適用上相關問題，容後詳加檢討及並一一加以釐清之必要。故本文將對此問題亦會詳加說明、分析及適時提出個人心得與建議，期望能供日後與此相關研究作為參考之用。
另對岸的中國大陸同屬於大陸法系之國家，為求建全公司治理及強化其競爭力，該國的公司法亦同樣有著相同問題，亦衝擊司法實務與學術界，是否要引進商業判斷原則必要考量?!宜應一併納入檢討與比較，期能獲「他山之石，可以攻錯」之功效，深植關注與借鑒之用，俾利作為日後修法之參考。
Article 23 of the Company Act of ROC was amended in November 2001, and the provisions of paragraph 1 are hereby added: “The person in charge of the company shall faithfully carry out the business and perform the duty of caring of the good manager. If the person in charge of the company violates the provisions and causes damage to the company, he or she shall be liable for such damages.” It is known that, by the reason of enacting such act, it is the introduction of Common Law that a company’s directors have fiduciary duty, which means that directors should place the interests of the company over their own interests in order to avoid conflicts of interest or disputes, including duty of loyalty and duty of care. This amendment clearly stipulates that the person in charge of the company shall fulfill the duty of loyalty and care to the company. However, the Business Judgment Rule (also known as BJR) is not introduced, which results in the obvious difference between the source of the provision and the law in the Republic of China’s practice when it is applied, and even the misunderstanding of its original meaning. Is it necessary to apply a law before it is expressly prescribed? The court should not invoke the Business Judgment Rule to exempt directors from writing, but should it be necessary to introduce the Business Judgment Rule at all? There are differences between practice and theory. Furthermore, the connotation, norms and application of duty of loyalty and duty of care added after revision of the law will be reviewed in detail and clarified one by one later. Therefore, this article will give a detailed explanation and analysis of this problem, and timely put forward personal experience and suggestions in the hope of providing reference for future research on this issue.
In addition, mainland China belongs to a country with civil law system. In order to improve corporate governance and strengthen its competitiveness, the Company Act of China also has the same problems, which also impacts the practice and the academia. Is it necessary to consider whether to introduce the Business Judgment Rule? It should be included in the review and comparison, so as to obtain the effect of “remedy our own defects by referring to others’ suggestions”, and it’s recommended to pay close attention to and draw lessons from it, so as to serve as a reference for future law amendment. |
