受託義務違反之求償模式建構

Monetary Liability for Breach of Fiduciary Duty

本文根據現行法規定，探討受託義務違反時之可能求償模式，而始於受託義務當事人之確立，指出受託義務之義務人得為董事、經理人及控制股東，各自義務內容有所不同，並釐清受託義務係以公司為直接對象、股東為間接對象。在此基礎上，本文由公司法及民法規定著手，分析以公司或股東為請求權人時，對各受託義務人所得主張之請求權基礎，以及彼此責任之關係，顯示現行公司法於公司法第23條第1項及第8條第3項修訂後，公司對於受託義務人之追償規定已相對完備；股東之求償權雖無明確規定，但仍可透過相關規定之解釋加以確立。儘管如此，現行法下將會因所主張之請求權基礎不同，產生各受託義務人間之責任關係不同的結論，而有待民法關於連帶責任相關理論之發展，以為解決。

Based on current laws, this article explores possible sets of causes of action for breach of fiduciary duty. Starting from the clarification with respect to the parties of fiduciary duty, this article indicates the obligor of fiduciary duty could be the director, officer or controlling shareholder, with different contents of fiduciary duty to be complied with. On the other hand, the obligee of fiduciary duty includes the corporation and the shareholder, the former of which is the direct party to be served and the latter the indirect party. Based on the aforementioned, this article further applies the provisions in the Company Act and Civil Code to construct the available sets of cause of action for the corporation and the shareholder against the director, officer and controlling shareholder, showing that the cause of action for the corporation is complete after the amendment of Article 23, Paragraph 1 and Article 8, Paragraph 3 of the Company Act. The shareholder's cause of action available is relatively vague, but it could be solved through interpretation of relevant provisions. However, the relationship of the liability among different fiduciaries varies with the different causes of action claimed, which is to be solved by further development of the joint liability theory in the Civil Code.