Common Law Influences in Private Law—Taiwan's Experiences Related to Corporate Law

普通法對私法之影響--臺灣公司法制之經驗

「普通法」一般指涉源於司法判決的法律原則,有別於立法部門制定的成文法。英國和美國通常被認為是最具代表性的普通法系國家;臺灣則被歸類為大陸法系國家。雖然普通法系國家大部分的私法都未經法典化,但在特定領域中基於有效監理的強烈需求,如公司法與證券法,成文化終究是必須的。然而,英美公司法和證券法中的原則和司法判決對於管制革新以及法院決定仍然產生重大影響。相對而言,在大陸法系國家,成文法限制了法院解釋與適用法律的裁量空間。本文以公司及證券法制之經驗為主軸,探討臺灣脈絡下普通法對私法之影響,並就普通法採取廣義認定。本文第二部分始就普通法國家的成文法典對臺灣公司及證券法之影響做討論,尤其是美國法制。第三部分接續檢討美國聯邦及各州普通法對臺灣之影響,第四部分深入剖析臺灣法院在公司及證券案件中是否援引及適用普通法規則,並於第五部分提出結論。

The term common law" generally refers to the legal principles derived from judicial decisions and is distinguished from statutory laws enacted by legislative department. The legal systems of the United Kingdom and the United States of America are typically referred as the representatives of common law legal systems. Taiwan is categorized as a civil law country. However, the Anglo-American corporate law and securities law principles and judicial decisions have significant influence on the regulatory reform as well as court decisions.Although most areas of private law are not codified in the common law countries, there is a need for enaction in some subjects of private law, such as the corporate law and securities law, because there are strong incentives for effective supervision. Although most common law countries have enacted corporate law statutes, judicial decisions still play an important role and sometimes influence the trend of legislation and regulatory reforms. Therefore, the content and development of the common law have great influences on the amendments of corporate law. In contrast, in civil law countries, the statutory law confines the freedom of the court to exercise its discretionary power in applying and interpreting the statutory provisions.This article explores Taiwan's experiences regarding the influences of common law on private law, particularly in the field of corporate and securities laws. This article broadly interprets the scope of common law. Part II of this article begins to discuss the influences of the statutory law of the common law countries, particularly the United States, on Taiwan's corporate and securities law. It is followed with examining the influences of the U.S. federal and state common law on Taiwan's corporate and securities laws in Part III. Part IV further discusses whether Taiwanese courts refer to and apply common law rules in the corporate and securities cases. Part V is conclusion.