The Research On Independent Director And Business Judgment Rule

• Main Authors: Yeh, Feng-Kang, 葉峰剛
• Other Authors: Chen, Cheh-Shan
• Format: Others
• Language: zh-TW
• Published: 2012
• Online Access: http://ndltd.ncl.edu.tw/handle/29262029758986628372

碩士 === 嶺東科技大學 === 財經法律研究所 === 100 === Taiwan adopted the dual-track frame in Modern Corporate Governance. Because the Supervisor system was inefficiency, Taiwan has introduced the Independent Director and Audit Commission rules from American, which also has been made legislation in the Securities and Exchange Ac in 2006. But the position of Taiwan director board was partial different from American, which has an orientation towards executing the business decision, not supervise. Under this conflicted situation of rules, the authorities and duties of Independent Director in Taiwan was inconsistent with translation. Hence, the point of this article will focus on this problem, and make advices form the viewpoint of rules, authority, and eliminating personal liability. In the aspect of systems, there was a situation of lacking Independent Director of talent, which cause the incumbents had to hold two or more posts concurrently. Therefore, they had no time and vitality to bring their professional knowledge into full play. In order to solve this problem, this article recommended that the Financial Supervisory Commission can invite the professional retired public servant to sever as the candidates of Independent Director. At the same time, the official authorities also have to establish complete talent bank. Besides, the new rules of Remuneration Commission must be amended which should be established or not by the demand of listed Company. In the aspect of authority, when the Independent Director was in the character of the member of director board, must treat their authorities as two aspects: when the board make a business decision, they would offer their professional advice on the basis of the objective standpoint, and when the other directors execute the decision, the Independent Director must supervise them, who might violate the laws. In view of this, this article recommended that the Company Act should amend section 193-II to the percentage of responsibility of the Independent Director. Besides, we could assay the due care of Independent Director with two viewpoints: business decision and Supervision. The duty of supervision could be treat as the most central authority. Hence, the standard of “good administrator” would be an appropriate one for them. Contrary, the Independent Director did not have enough time to realize every single business decision and acquire consistent information due to their outside and objective stance. Therefore, it must have to provide the Business Judgment Rule (BJR) for them to reduce their risk of litigation. The ideal BJR supplementary measure should renew as follows: Amended the Company act section 23-I, establish the complete fiduciary duty of Independent Director; and the court also have to generalize the concrete and definite standard of the Independent Director`s duty of care from various cases; Moreover, when the court had applied the BJR, they must clearly expound the burden of proof between the plaintiff and defendant. Concluding from the above-mentioned, only the complete and definite Independent Director rules can really elaborate it`s effect, and to achieve preferable Corporate Governance.