公司與董事交易之內部決策與外部代表──兼論關係人交易之規範

The Internal Decision-making and External Representative of Company Transaction with Director: Also on Regulating Related Transactions

公司法第223條應如何適用，迭有爭議，近來雖有多件最高法院判決作成，但仍有諸多問題。現行實務見解在公司與董事交易時，不乏有將決策權限配置予監察人，但如此不僅未能根絕決策者因同事情誼而犧牲公司利益的問題，更與公司治理各機關之功能配置相衝突，甚至使監察人有機會杯葛公司運作，實值深思。本文由股份有限公司之治理結構著手，認為應回歸公司法第223條文義，認為公司法第223條僅是在決定公司與董事交易時之代表權人，內部決策機關仍應為董事會，蓋董事會具有集思廣益的合議性，較適合作為經營決策的核心機關，若擔心董事會決策偏頗，可依現行法中的利益衝突說明與迴避規定進行規範，而不須改變決策機關。本文並介紹德拉瓦州於2025年3月25日所修正之普通公司法第144條內容，以為我國學說實務參考。

This article examines the application of Article 223 of Taiwan’s Company Act concerning transactions between a company and its directors, highlighting ongoing controversies and practical challenges. Current judicial practice in Taiwan often vests the decision-making authority for such transactions to supervisors. However, the article argues this interpretation is flawed because it fails to eliminate potential conflicts of interest arising from collegial friendships among directors, contradicts the intended functional allocation of corporate governance organs, and can potentially impede company operations. Thus, Article 223 of Tawain’s Company Act should be narrowly interpreted to define only the company’s external representative for transactions between a company and its directors. The internal decision-making power should remain with the board of directors, because the board, operating in a collegial system, is better suited for complex business judgments through collective wisdom. To address concerns about biased board decisions, the focus should be on implementing existing mechanisms for interested directors to disclose and recuse themselves. For public companies with an audit committee, Taiwan’s Securities Exchange Act stipulates that related-party transactions involving director interests must be approved by the audit committee and subsequently by the board of directors. While the audit committee can designate its members as representatives, the article contends that since the board remains the ultimate decision-maker, it should also be responsible for selecting the external representative. This article also introduces the amendment to Section 144 of Delaware General Corporation Law effective March 25, 2025 as a valuable reference for Taiwan’s future legislative efforts to improve related party transaction regulations. Delaware law provides multiple safe harbor mechanisms, including independent committee and majority vote of unaffiliated shareholder. These mechanisms detail the qualifications, powers, and procedural requirements for decision-making bodies. In contrast, Article 223 Taiwan’s Company Act overemphasizes external representation and lacks detailed provisions for internal decision-making and standard of review.