代理發票還是共同發票？一個實務上迭生爭議的問題──兼評臺灣新竹地方法院104年度簡上字第108號判決

Signing a Negotiable Instrument as a Co-drawer with or an Agent for a Juridical Person? - Comment on the Jian-Shang-Tzu No. 108 Judgment of Hsinchu District Court in the Year of 104

票據為文義證券，對於票據內容之解釋，應依外觀及客觀解釋原則，故票據法第9條排除隱名代理之適用。惟依最高法院41年台上字第764號判例及67年度第7次民事庭庭推總會決議（一）意旨，仍有條件承認隱名代理之效力，從而就法人發票，於大小章外尚有第三人簽章時，該第三人究屬共同發票或代理發票，迭生爭議。查多數實務見解仍要求其外觀上須有別於共同發票且達顯著區辨性，始可認係代理發票，印文順位及緊接程度之判斷方式欠缺外觀顯著之區辨性，且甲種存款留存印鑑屬帳戶申請者與銀行間之內部約定，亦不足以對抗執票人，故該第三人應論以共同發票之責，否則票據客觀性及文義性將名存實亡，此為臺灣新竹地方法院104年度簡上字第108號判決所慮未及者。

Pursuant to Article 9 of Negotiable Instruments Act, an agent who signs a negotiable instrument without expressly indicating that he signs on behalf of the principal shall be personally liable on the instrument. In addition, a person who signs his name to a negotiable instrument is liable thereon according to its tenor and where a negotiable instrument is signed by two or more persons together, they are jointly and severally liable thereon under Article 5 of Negotiable Instruments Act. Accordingly, any person as an undisclosed agent is supposed to be personally liable on the instrument. However, the Tai-Shang-Tzu No. 764 Judgment of Supreme Court in the Year of 41 held that undisclosed agency would be effective under certain circumstances, which makes it arguable whether a person other than a statutory agent as an undisclosed agent for a juridical person shall be jointly and severally liable with the juridical person on the instrument. For the purpose of the circulation and transaction security, negotiable instruments should be in accordance with the principles of literal construction and objective interpretation. In the light of most court decisions, it is essential for effective undisclosed agency to have apparent discriminability from the drawing of a negotiable instrument. The distance between seals/signatures on a negotiable instrument would be a lack of significant discriminability. Moreover, the authorized seal or signature on cash disbursement forms is not enough to fight against the holder of a negotiable instrument. Based on the analysis of the aforementioned purposes, principles and judgment precedents, this paper discusses the Jian-Shang-Tzu No. 108 Judgment of Hsinchu District Court in the Year of 104.