2022年公司法與證券交易法發展回顧

Developments in the Law in 2022: Corporate Laws and Securities Exchange Laws

本文就2022年公司法及證券交易法的發展中挑選部分主題予以分析跟討論。近年來揭穿公司面紗原則或否認法人格之案例日多，法院之論述方式又十分近似，即與法條規定相距甚遠，特別是2022年一則最高法院的判決直接以否認法人格的方式使公司遵守契約值得注意。現代公司大部分董事不負責公司日常業務的執行，因此，在判斷董事是否善盡其注意義務也從傳統的判準演變成監督義務。然而司法實務上對於何謂監督義務，見解仍未臻成熟，本文就其發展也予以詳加討論。至於常見的借名登記及直接訴訟與代位訴訟的不易區分，本文亦有觸及。
2022年證券交易法的案件多數環繞在財報不實及內線交易這些類型。而財報不實在歷經多年發展，不少法院已穩定的接受詐欺市場理論可以成為舉證方式之一時，2022年底最高法院卻突然將財報不實抽離出來，使其與美國法脫勾而只能依循德國法侵權行為之路徑，本文加以討論與批評。最後資本市場中經營權的爭奪使董事長被以臨時動議解任及獨立董事任意召開股東會造成法規變化皆有討論。

This article selects and analyzes certain themes in the development of company law and securities exchange regulations in 2022. In recent years, numerous cases have come to light exposing the issues of piercing the corporate veil or disregarding the corporate entity, with the courts’reasoning showing similarities. Often, their interpretations deviate significantly from the provisions of the Company Act. One particularly noteworthy case is a 2022 Supreme Court judgment that directly denied the corporate separate personality to enforce a contract. Apart from this, the topic discussed in this article includes the transformation of directors’duty of care into the duty of oversight. In modern corporations, most directors do not actually engage in the daily business operations of the company. Therefore, the concept of directors fulfilling their duty of care cannot be based on the traditional criterion of directly executing company operations. Instead, it is now determined by whether directors have established effective internal control systems and whether these systems operate properly. In our legal context, there is still no stable consensus on this shift, so this article discusses both U.S. law and our judicial judgments on the matter. This article also addresses common issues, such as using someone else’s name for registration, and the challenge of distinguishing between direct and derivative lawsuits.
In 2022, the majority of securities law cases revolved around financial statement misrepresentation and insider trading. Despite misrepresentation evolving over the years, and most of the courts accepting the fraud-on-the-market theory as a means of proof, the Supreme Court surprised many by separating misrepresentation of financial statements from US law and aligning it with the path of tort under German and Taiwanese Civil Law. This article delves into a discussion and critique of this change. Finally, various phenomena related to the contest for control of companies in the capital market, including the removal of the chairman through temporary motions and the independent directors convening extraordinary shareholder meetings to remove directors with opposing views, have caused significant market unrest. In response, the competent authority has amended relevant regulations in an attempt to address these issues, and this article discusses these changes.