從我國公司董事之監督義務探討ESG之光與影

The Light and Shadow of ESG from Corporate Directors’Duty to Monitor

綜觀中外，以營利為目的之社團法人即公司，是否「應」盡ESG之責任，可說是聚訟盈庭，莫衷一是。多有認為應強制公司採行ESG，以促進公司之永續經營。惟我國現行法並無明文規定公司有履行ESG之義務，且是否採行ESG應屬公司董事會之商業經營決策權，政府不應輕易介入或干涉。又因董事之監督義務係屬董事忠誠義務之一環，若法律強制公司應執行高標準ESG之業務，則董事會決議不執行ESG之經營，甚或消極不作為，虛與委蛇，即可能被認定為怠於行使職務而自肥，而違反其對公司及股東之忠誠義務。據此，高標準ESG之強制入法，董事之商業經營自由裁量權，不但將遭受重大衝擊，公司受憲法保障之不表意自由，亦有受重大侵害之虞。故本文認為，各國之政策制定者不應為ESG而ESG，公司是否為ESG之經營，應由公司董事會就其所獲資訊，基於專業對股東作最有利之商業經營判斷。

Considering both domestic and global viewpoints, the question of whether for-profit juridical entities, namely corporations, bear an ethical obligation to fulfill their ESG responsibilities remains a subject of debate without a unanimous consensus. Some scholars argued that it is imperative to mandate corporations to adhere to ESG principles to facilitate the sustainability of their operations. However, our nation’s legal framework does not explicitly require companies to fulfill ESG obligations. The adoption of ESG practices should rightfully fall within the purview of a corporation’s board of directors, as a matter of business decision-making autonomy, with the government refraining from unwarranted intervention.
Furthermore, as the director’s duty to monitor is encompassed by fiduciary duties, if the law were to compel corporations to undertake high-standard ESG practices, then decisions by the board of directors to abstain from ESG initiatives or engage in passive inaction, thereby resorting to equivocation, could potentially be construed as shirking for self-enrichment and a breach of their duty of loyalty to the company and its shareholders. Consequently, the mandatory inclusion of high-level ESG standards in the law not only jeopardizes the substantial discretion vested in directors regarding business operations, but also infringed upon the constitutionally protected freedom of speech of the corporations. As such, this Article asserts that policymakers should refrain from enacting ESG-related regulations solely to pursue ESG ideals. The determination of whether a company should implement ESG practices should rest with its board of directors, who, based on their professional expertise and available information, are best positioned to make business judgments that maximize shareholder benefits.