董事異質化對傳統董事義務規則的衝擊及其法律應對－－以代表董事為研究視角

Duties and its Legal Implications: Perspective on Constituency Directors

傳統公司法理論基於對董事同質化的假定，對董事義務規則進行了劃一性的規 範和強制性的規定。但代表董事的出現將對傳統的董事義務理論提出嚴峻挑戰，不同類別的董事之間因其所代表的“選民”利益訴求的不一致而導致行為選擇的差異性在所難免。傳統的信義義務規則必須根據董事角色的這種嬗變而作出必要的調整和改造。可能的改造途徑主要包括：以代表特定主體利益的差異化義務代替統一的信義義務；通過強化專門委員會的地位實現董事會權力的分解和下沉；鬆綁特定董事的保密義務；利用缺省性規則對統一的董事信義義務進行改造；完善公司的社會責任等。通過比較分析可以看出，在所有的可能性路徑中，將董事信義義務的強制性規範屬性修改為缺省性規範，無疑是最為明智的選擇。

Based on the assumption of the homogeneity of directors, the traditional company law theory sets a unified and mandatory rule for directors’ duties. However, the emergence of constituency directors challenges this theory. Different constituency directors will inevitably have different behavior choices because of their inconsistent representatives. As a result, the traditional fiduciary duty should be reformed due to this evolution. Several approaches have been identified in order to reform the directors’ duties. First, the unified directors’ duties could be replaced by differentiated obligations due to the different representatives of various interests. Second, disassembling and sinking the power of the board of directors by strengthening the role of special committees. Third, relaxing the duty of confidentiality for directors by which they could inform their representatives about companies. Fourth, turning the mandatory rule of directors’ duties into a default rule by which they could serve their constituency without violating the traditional directors’ duties. Last, the drawbacks could be corrected by improving the system of corporate social responsibility. Among these, this article suggests that turning a mandatory and unified director’s obligation into a default rule would be the most sensible choice.