公司內部意思形成之欠缺或瑕疵對公司外部行為效力之影響：兼論董事（長）與經理人之代表權與代理權

The Internal Irregularity and Its Effect on the Validity of Transactions: Concurrently Discussing the Authority of Directors and Managers

公司非有自然人之代表或代理無法對外為法律行為，而自然人對外為代表或代理時，需公司內部先形成意思，該意思之形成或由股東會為之、或由董事會為之，或經股東會或董事會授權後為之；又或者基於代表人或代理人與公司間之委任關係而具有之概括代表或代理權限而可自行為之。公司內部意思形成之過程可能發生瑕疵，此際該瑕疵若導致股東會或董事會之決議不成立、無效或撤銷時，是否將連帶影響公司對外法律行為之效力，其與代表人或代理人對外權限之限制間有何關連，一直困擾學術界與實務界。我國實務見解多採「連動說」，亦即，當公司內部程序有瑕疵以致於該決議不成立、無效或被撤銷時，對外之法律行為通常亦為無效，此種見解不利於交易安全，蓋交易相對人未必可以察知此一瑕疵。相較之下，英系國家所採之內部管理原則可以強化交易安全之保障，而其課與交易相對人之適度查證義務可以保障股東，力求股東保護與交易安全間之平衡，值得我國借鏡。

A company enters into transactions with third parties by its agent or representative. However, third parties are under the risk of whether that agent or representative has complied with internal company procedures (such as the resolution of the general meeting or of the board of directors) and whether that person has authority. If the company does not comply with internal procedures (i.e. there are internal irregularities), and this results in the resolution being voided, then the issues at hand are whether these transactions should be declared void and whether these actions are just, both of which have given rise to a flurry of academic writings in other jurisdictions. In Taiwan, however, it is not yet being paid sufficient attention by either academia or court judgments. The courts are inclined to declare that the transaction entered into on the basis of the void resolution is void too. This stance will inevitably compromise the safety of transactions and shift the risk to the innocent third parties. From a comparative perspective, the indoor management rule, i.e. the rule of the Turquand case and its development by the British court, may be worth borrowing when Taiwan's Company Act is reformed. Under the Turquand rule, the third party is entitled to assume that an agent of a company has the authority and internal formalities have been complied with unless he knows or has reason to know the contrary. This rule strikes a balance between the protection of shareholders and the third parties, and it is more flexible and suitable than Taiwan's courts decisions in matters pertaining to commercial practices.