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題 名 | Director's Liability toward the Corporation for Breaching the Duty of Care: Comment on the Current Taiwanese Law from a Comparative Law Study on Case and Statutory Laws in the United States=公司董事因違反其注意義務對公司之責任:由比較法之觀點分析美國判例和制訂法對當前臺灣法律規定之評論 |
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作 者 | 楊君毅; | 書刊名 | 致理法學 |
卷 期 | 1 2007.03[民96.03] |
頁 次 | 頁185-246 |
分類號 | 587.2 |
關鍵詞 | 董事; 公司; 損害賠償; 注意義務; 企業經營決策; Director; Corporation; Damage; Duty of care; Business judgment; |
語 文 | 英文(English) |
英文摘要 | Liabilities of directors encompass their liabilities toward the corporation and those toward a party other than the corporation, with the former being the subject of this article. With respect to directorial liabilities arising out of the director’s conduct toward a party other than the corporation, the rules of general tort law in Taiwan prescribe the director’s liability toward such a party, when the directorial conduct giving rise to the liability was not associated with the director’s employment responsibilities; whereas, if the directorial conduct is characterized as within the director’s scope of employment, the director may be held to a “joint and several liability” with the corporation pursuant to Section 28 of the General Principles of the Civil Code or, alternatively, Paragraph 2, Section 23 of the Corporation Act prescribing directorial liability arising out of violation of the statute. With respect to the current rules of law in Taiwan regarding liabilities of directors relating to directorial conducts within the scope of the director’s employment, it appears incompatible with the prevailing legal theory of Anglo-American Law that directors, merely an alter ego of the corporation when acting in a capacity as agent or representative of the corporation, should be insulated from any liability attributed to the directorial conducts causing damages to a party other than the corporation. In addition, this article does not focus on the issue of whether a corporation is entitled to seek compensation from the director whose conduct caused the corporation to incur liability toward the other party. Similarly, this article does not attempt to stress the issue in which liability of the corporation toward the government agency results from the director’s conduct, giving rise to the corporation’s right of reimburesement from the director for its loss. Moreover, it is important to note that directorial liabilities toward the corporation may arise in circumstances in which the director does not cause the corporation responsible to the damage of a third party; but instead are attributed to the director’s inattentiveness of corporate affairs or uninformed decision-making process. In this regard, the Corporation Act of Taiwan, except in a few Sections prescribing directorial liabilities arising in certain fact-specific circumstances, leaving unregulated directorial liabilities toward the corporation as they occurs in other garden-varieties of situations (i.e., the general liability of the director toward the corporation). Nevertheless, in the wake of the major Amendment of the Corporation Act of Taiwan in the year of 2001, it includes a provision in the First Paragraph of Section 23 (“Section 23 (1)”), stating, among other things, that “Directors are responsible to losses of the corporation for breaching the directors’ duty of care toward the corporation,” which has since been interpreted by the majority of commentators as prescribing the general liability of the director toward the corporation. Unfortunately, it have been scant judicial precedents explaining the extent of Section 23 (1) as it would be applied to each case with distinct factual patterns. Therefore, courts as well as commentators have been perplexed regarding the utilities of Section 23 (1). From a comparative law perspective, this article endeavors to synthesize case and statutory rules of law in the United States concerning liabilities of directors toward the corporation arising in circumstances relevant to the perceived ambit of Section 23 (1). Specifically, this article will stress the implications, both positive and negative, from imposing on directors such liabilities, as well as the responses of the judiciaries and legislatures in various States of the United States in balancing directorial accountability and meritorious business judgment on the other hand. |
本系統中英文摘要資訊取自各篇刊載內容。