英文摘要 |
Under the Company Act, the term, Director, only means De Jure Director which refers to those who are validly appointed by the company in which they serve. Thus, any person will not be regarded as a director, even though he/she may occupy the position of director or have substantial influence on the operation of a given company. Thus, a legal loophole has been created because such powerful persons in a company will not be subject to obligation and liability rules of the Company Act imposing on directors (or responsible persons). In response to this loophole, Paragraph 3 of Article 8 of the Company Act (the Paragraph) was enacted in 2012 and introduced De Facto Director and Shadow Director into Taiwan's legal system. Thus, any person, who occupies the position of a director or gives instructions or directions usually followed by directors of the company, may be deemed as De Facto Director and Shadow Director and then she should be liable for her misconduct, if any, just like De Jure Director. However, both De Facto Director and Shadow Director are new concepts in Taiwan and the identification of De Facto Director and Shadow Director in a given case can be a new problem. To make the Paragraph effectively workable, a clear standard of how to identify De Facto Director and Shadow Director in a given case should play a pivotal role. As U.K. is the first country which introduces such concepts and has had many cases in this regard, its judicial opinions can be good reference for Taiwan's competent authority. Therefore, this Article will review some important cases in U.K. and propose a suggestive standard for the Paragraph. In addition, this Article will discuss some issues in relation to the application of the Paragraph and analyze how the Paragraph will work closely and effectively with other mechanisms currently existed under the Company Act. In conclusion, with an eye to maintaining accountability consistent with corporate governance, this Article will offer suggestions for future reform on the Paragraph. |