忠實義務的相對化

The Overstated Duty of Loyalty

90年公司法修正增訂第23條第1項明文規定忠實義務。對於忠實義務的內涵，一般常認為以利益衝突的防免為中心，本文即以此為探討對象。本文首先引介美國法上關於忠實義務相對化的觀察，繼而從90年公司法修正前即已存在之忠實義務具體化的規定的解釋，說明我國法上亦存在類似之忠實義務相對化的發展。有了這樣的認識，吾人不僅可以確實瞭解忠實義務的規範作法與實況，對於我國法上看似獨特、飽受批判的規範，也可以給予更公允的評價。

In 2001, the Taiwan Company Act was amended to add Article 23, Paragraph 1, which explicitly mentions the duty of loyalty. Since then, in Taiwan’s scholarship, a lot of ink has been spilled on how the duty of loyalty is applied in American corporate law, but the oftencited observation that the duty of loyalty has been diminishing in the U.S. is rarely talked about. Introducing this observation in the U.S., this article attempts to show that we can also find such developments in the rules on conflict of interest in Taiwan Company Act. This understanding not only allows us to rightly appreciate the functions of the concept of duty of loyalty, but also enables us to take a better look at some rules in Taiwan Company Act that have long been unfairly criticized.