國際私法上外國公司法律地位及準據法之比較研究──以我國及法國法制為中心

A Comparative Study on the Legal Status and Governing Law of Foreign Companies in Private International Law: Focusing on the Legal Systems of Taiwan and France

本文以我國及法國法制為中心，比較研究外國公司的法律地位與準據法決定。在我國，外國公司依公司法第4條採準據法主義，以設立地法認定其國籍，並廢除認許制，權利能力受我國法令限制，強調分公司登記與資金專撥以保障交易安全。涉外民事法律適用法第13條及第14條規定法人內部事項適用設立地法，但規範較概括，未細化資本、股東責任等議題。法國法則區分法國公司、歐洲公司及外國公司（歐盟外設立），傳統上以「實際運營地」判斷國籍與準據法，避免虛設公司規避法律，但2022年國際私法法典草案改採「註冊地法」，並詳細規範設立、資本、股東責任等事項。歐盟法則強調設立自由原則，以設立地為準據法基礎。
比較之下，法國法制較細緻，關注公司治理細節；我國規範簡略，恐影響法律適用穩定性。作者建議我國可引入「實際運營地」作為輔助標準，並參考法國草案細化內部事項規範，以因應跨國企業複雜性，提升法律透明度與第三人權益保障。

This article conducts a comparative analysis of the legal status and applicable law of foreign companies, with a focus on the legal systems of Taiwan and France. In Taiwan, foreign companies are governed by Article 4 of the Company Act, which adopts the principle of applicable law, recognizing a company’s nationality based on the law of its place of incorporation. This provision marked a shift away from the former recognition-based regulatory approach. The legal capacity of foreign companies is restricted under Taiwanese domestic law, particularly emphasizing the necessity of registering a local branch and allocating operational capital, in order to safeguard transactional security and protect local stakeholders. According to Articles 13 and 14 of the Act Governing the Application of Laws to Civil Matters Involving Foreign Elements, the internal affairs of a legal person are governed by the law of the place of incorporation. However, these provisions are broad in scope and lack detailed rules regarding issues such as corporate capital, shareholder liability, and governance structure. Moreover, the absence of implementing regulations or authoritative interpretations has the potential to result in inconsistent application by courts when resolving cross-border corporate disputes.
In contrast, French law distinguishes between French companies, European companies, and foreign companies (i.e., those incorporated outside the European Union). Traditionally, France has used the“real seat”(place of actual operation) doctrine to determine a company’s nationality and applicable law, aiming to prevent the use of nominal incorporation to evade legal obligations. However, the 2022 draft of the French Private International Law Code signals a doctrinal shift by applying the“law of the place of registration”and includes more comprehensive and systematic rules on company formation, capital structure, and shareholder liability. EU law, for its part, emphasizes the principle of freedom of establishment and likewise applies the law of incorporation. Taken together, this framework reflects a higher degree of harmonization, legal certainty, and transparency within the EU internal market.
Compared to the French legal system, Taiwan’s regulatory framework is characterized by a higher level of abstraction and regulatory indeterminacy, which may pose risks to legal certainty and consistency. The author suggests that Taiwan consider incorporating the real-seat principle as a supplementary connecting factor and draw on the French draft code to refine internal corporate rules. Such reforms would enhance alignment with international developments in private international law, strengthen legal predictability, and improve the protection of third parties engaged in cross-border commercial transactions.