碩士 / 國立成功大學 / 法律學研究所 / 96 / For the business necessity, corporate jurisprudence in the United States, especially the one of the Delaware State, has many innovative mechanisms, such as the business judgment rule and liability immunity. Besides, the modern theory of corporate governance relies heavily on internal su-pervision of the corporation which is also frequently and efficiently enforced through the inde-pendent directors and derivative litigations. These are highly worthy for Taiwan’s academias and the legislators to analyze and thereto tackle the difficult problems in present internal governance flaws. After the introduction of fiduciary duty and independent directors into Taiwan’s Company Act and Securities and Exchange Act recently, there still are many suggestions to advance internal corporate monitor functions including the introduction of the business judgment rule, indemnification for in-dependent directors, and lift of the restrictions of present derivative litigation. This thesis agrees with these arguments above, but at the same questions that under the business practice, it wouldn’t be timely to meet the desperate need. Thus, this thesis seeks through present Taiwan’s Company Act to find proper basis to strike the balance of corporate managing flexibility and internal supervision.
In light of Taiwan’s academic literature which mainly focuses on the materials and interpreta-tions of fiduciary duty, and there are rare articles ever discuss safe harbor clauses which in turn will materially re-write contents of fiduciary duties and litigation practices; this thesis orients toward safe harbor. These, in fact, dispersive safe harbor clauses also reflect limitations of fiduciary duties, and deserve a thoroughly elaboration. This thesis first analyzes corporate theories and determines that the corporation is the ultimate beneficiary whom corporate managers owe fiduciary duty to. Thus, the corporate managers are granted with greater discretion rather than under the shareholder primacy norm. Then, this thesis outlines contents of fiduciary duty branches. Through the process of researching and figuring the safe harbor clauses, this thesis identifies that in Taiwan’s Company Act there are two Sections have comparable similarity, Sections 231 and 209.
While discussing duty of care, this thesis argues that Section 231 could be interpreted as the safe harbor clause which has equivalent function of the Section 102(b)(7) of the Delaware General Corporation Law (DGCL). With appropriate definitions of the debate-provoking term, unlawful conducts, Section 231 of Taiwan’s Company Act could plays equivalent character which Section 102(b)(7) of the DGCL plays in the corporate jurisprudence of the Delaware. Moreover, to ac-knowledge such interpretation would simultaneously introduce business judgment rule which grants corporate managers with necessary management discretions and protects them from nuisance of de-rivative litigations.
As to duty of loyalty, it binds varied acts which involve conflicts-of-interest including competing with fiduciary’s corporation, usurping corporate opportunity, and self-dealing. And present Section 209 of Taiwan’s Company Act solely allows shareholders to authorize or to ratify corporate managers to compete with fiduciary’s corporation, but it shall not be extended to other disloyalty conducts. As to duty of candor, the hybrid of fiduciary duties of care and loyalty, this thesis regards its importance in information access and views it to be the essential tool in corporate governance. Duty of candor could be divided into complete candor obligation and duty of disclosure. The former is applied when corporate managers seek for shareholders actions, and examined by the materiality test. Complete candor obligation also helps to fix loopholes in present Taiwan’s proxy rules. The latter has been absorbed into the mandatory disclosure obligations of the securities regulation, and causes the issuers’ chairman and general manager face enhanced strict liability. However, this thesis argues that the chairman and general manager are still able to be immuned from monetary damages as long as their conducts don’t fall within the range of unlawful conducts of the Section 231 of Taiwan’s Company Act.
| Identifer | oai:union.ndltd.org:TW/096NCKU5194008 |
| Date | January 2008 |
| Creators | Yu-Hung Chen, 陳譽汯 |
| Contributors | Chun-Jen Chen, 陳俊仁 |
| Source Sets | National Digital Library of Theses and Dissertations in Taiwan |
| Language | en_US |
| Detected Language | English |
| Type | 學位論文 ; thesis |
| Format | 195 |
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