法力無邊？董事任期前股份設質於表決權行使之限制──最高法院一○三年度台上字第一七三二號民事判決

The Limitation on Exercising the Voting Power of Shares Pledged before the Term of Office of A Director

公司法第一九七條之一第二項，董事將其股份設質而限制其行使表決權之規定，是否包括董事當選前（即任期前）所為之股份設質？為該等條文之重要法律上爭議。最高法院在一○三年度台上字第一七三二號民事判決認為「無論董監事之持股設質係在任期前或任期中，對其超過一定比例之股份限制其表決權之行使，始符法意。則依此規定計算董監事股份設質數時，應不以其於任期中之設質為限。」本文從「法律明確性與商業活動安定性」與「公司治理」角度思考，認為最高法院之見解並非妥適，並進一步建議關於董事任期前與任期中股份設質的規範，應以公開揭露之方式為之。

Paragraph 2, Article 197-1 of the Company Act provides that “In case a director of a company whose shares are issued to the public has created a pledge on the company’s shares more than half of the company’s shares being held by him/her/it at the time he/she/it is elected, the voting power of the excessive portion of shares shall not be exercised and the excessive portion of shares shall not be counted in the number of votes of shareholders present at the meeting.” Dose such an article apply to the shares pledged by a director before the term of his/her/its office? The Supreme Court held that this article shall apply to shares pledged both “before” and “within” the term of his/her/its office. This comment does not agree with the said Supreme Court’s opinion from the perspectives of stability of business activities and corporate governance. This comment also suggests that disclosure is a better approach to deal with the issue of creating a pledge on the shares held by a director."