法人董監報酬之歸屬－－評最高法院101年度台上字第700號民事判決

The Belonging of Compensation of Legal Persons as Corporate Directors or Supervisors -Comment on Supreme Court Civil Judgment 101 Tai-Shang-Tzu 700

本案原告因支付董監報酬之基礎遭法院認定為無效而依據不當得利之規定向董監請求返還報酬，被告為其法人股東及以代表人身分當選董監之自然人。高院判決原告應向「法人股東」請求返還，最高法院則判決應向「自然人代表」請求。對於此一爭議，國內目前有認為應依內部委任關係決定者、亦有認為應依外部關係決定者，外部關係又可分為兩說，一說係視委任關係存在於何人之間、一說係須依三方之約定以為據。本文則主張應依代表關係重新檢視其外部關係，由於代表人之人格在代表關係下已被本人（法人股東）吸收，因此，無論是依公司法第27條第1項或第2項產生之法人董監，其報酬均歸屬於法人股東。

In this case, the plaintiff claims that were authorized to pay reasonable compensation to director and supervisor of the company. But the court granted summary judgment dismissing plaintiff's claim. The defendants are corporate shareholder and natural person shareholder, it may be elected as a director or supervisor of the company. The defendants argued that plaintiff had conferred the benefit upon the defendants; therefore the defendants' retention of the benefit was not unjust. The High Court determined that plaintiff should ask corporate shareholder to return the compensation. The Supreme Court states that plaintiff should ask natural person shareholder to return the compensation. Regarding this issue, one of its asserted claims is under the doctrine of internal mandate relationship, another is under the doctrine of external mandate relationship. The doctrine of external mandate relationship is divided into two parts. One part depends on mandate relationship between two parties; another depends on the tripartite agreement. This article argues that the external relationship should be re-examined by representative relationship. Because the representative's personality is acquired by the corporate shareholder, no matter corporate shareholder be elected as a director or supervisor of the company. The compensations should be granted to corporate shareholder under paragraph 1 or 2, Article 27 of Company Act.