董事監督義務及其於ESG之應用

Director’s Oversight Duty and Its Application to ESG

以 Marchand 案以來之判決為契機，本文探討德拉瓦州法下監督義務之內涵及其實現機制。監督義務歷來雖被認為責任構成門檻極高而難以被認定有違反情事，不過德拉瓦州法院自Marchand 案以後，於產品單一、所在產業受高度規範或所涉事項為關鍵工作之場合中，有寬認監督義務之趨勢。與此同時，論者開始討論監督義務於ESG 事項上之應用。本文檢視上開發展，認為我國法上監督義務之最大不足，係來自於執法機制之不完善，蓋監督義務之主張應以代位訴訟的方式提出，惟我國公司法歷來對於代位訴訟有諸多缺失，致股東並無誘因使用。儘管如此，本文認為透過主管機關進行行政裁罰、建構第三人對公司違反組織義務之侵權行為請求，以及主管機關致力於形塑良好公司治理環境等手段之併用，或可促使董事重視其監督義務，並將其範圍擴及於ESG 事項。

This article reviews the director’s oversight duty in the context of Delaware case laws and explores its enforcement mechanism. From its establishment in Caremark, it is commonly understood that it is one of the most difficult argument to succeed under Delaware law to impose the personal liability on director for their breach of oversight duty. However, due to the great influence by the Delaware court over the corporate law, the opinion in Caremark is treated seriously and followed in practice, leading to a status of self enforcement. Such position seems to have started to change from a series of rulings following the Marchand ruling, in which the Delaware court indicates the potentials for the director’s oversight duty in the event of a mono product line company, a company in a highly regulated business or the issue involved constituting a company’s mission critical operation. In the same time, it becomes a hot topic to discuss the application of the oversight duty to achieve a company’s ESG goal.
In view of the above trend, this article argues that the most deficiency of Taiwan’s oversight duty comes from the inadequate design of enforcement mechanism. Like Delaware law, the claim of breach of oversight duty is an indirect claim. If the shareholder wants to initiate legal proceedings against the director, it has to be in the form of the derivative suit. However, the process of the derivative suit under the Company Act does not provide sufficient incentives for the shareholder to sue. Although such hurdles are removed by the enactment of the Securities Investor and Futures Trader Protection Act, which grants the Securities and Futures Investors Protection Center (“SFIPC”) to initiate derivative suits without the constraints by the Company Act, SFIPC has its own issues that would lead to underenforcement. To deal with such conundrum, this article proposes to enhance governmental authority, establish the organizational liability as the substitute and forge an amicable environment to stimulate shareholder activism as the solutions.