Supervisory Right Enforcement of SupervisionDepartment under Corporate Group

• Main Authors: Yu-LingHsu, 許育菱
• Other Authors: Chih-Cheng Wang
• Format: Others
• Language: zh-TW
• Published: 2012
• Online Access: http://ndltd.ncl.edu.tw/handle/20174405884717336842

碩士 === 國立成功大學 === 法律學系 === 100 === Corporate Group（Affiliated Enterprises） is the product of highly developing modern economic, whose organization is composed of members sharing interest jointly, including controlling company as the head of group and subordinate company that controlling company dominates. Although members of Affiliated Enterprises are independent legal entities, considering the diversity of Affiliated Enterprises that is different from traditional corporation, including corporate managers of controlling company dominate subordinate companies, and members of the Affiliated Enterprises have consistent economical substance, it may give rise to risks that corporate managers of controlling company have higher possibility to abuse such dominance and thereto cause corporate collusions, harm to group interest, and even harm to capital market. Therefore, it reveals the importance to enhance internal supervisory mechanisms of Affiliated Enterprises. This Essay starts from the perspective of comparison of domestic and foreign legal systems, and then, in Chapter 2, demonstrates the diversity (of Affiliated Enterprises) in managing authority and managing structure by introducing basic concepts of Affiliated Enterprises, such as background to form Affiliated Enterprises and definition of Affiliated Enterprises. In Chapter 3, this Essay elaborates special supervisory mechanisms which are designed for the diversity of Affiliated Enterprises, also are doctrine of piercing the corporate veil, disclosure doctrine and deep rock doctrine, under Affiliated Enterprises Chapter of Taiwan’s Company Act. Notwithstanding the foregoing, in practice, there still are loopholes derived from the diversity of Affiliated Enterprises, such as evasions to resolutions of controlling company shareholders meeting, evasions to responsibility of substantial person-in-charge and barrier to enforce controlling company shareholder’s right to review books and statements; therefore, this Essay tries to survey applicable solutions among foreign legal systems. In Chapter 4 to 6, this Essay respectively examines present internal supervisory departments in Taiwan’s Company Act, which are Supervisor, Independent Director and Audit Committee, and analyzes supplementary measures which are developed corresponding to diversity of Affiliated Enterprises under foreign legal systems and employed for the purpose of strengthening each supervisory department’s authority and independence. After comparing Supervisor under present Taiwan’s Company Act with supplementary measures abovementioned, this Essay further discovers that controlling company’s Supervisor may face problems arising form insufficient independence and insufficient rights to review and examine books and statements, and thereto discusses the appropriateness to transplant mechanisms related to Supervisor’s discretion under Japan’s legal system and provides suggestions to future amendments to Taiwan’s Company Act. Moreover, Independent Director and Audit Committee under legal system of the United States are transplanted into Taiwan’s Company Act as well; however, there are some issues incurred from practical applications due to failure to certify difference between one-tier system and two-tier system. As to supervisory right enforcement in Affiliated Enterprises, except for conflicts incurred from co-existence of Independent Director and Supervisor, Independent Director and Audit Committee both suffer the same restriction to enforcement because of insufficient access to information of subordinate company. Nevertheless, Independent Director of controlling company also suffers restriction to enforcement for the reason that Independent Director is strictly withheld to serve in two companies simultaneously. Therefore, this Essay introduces solutions to issues aforesaid, which are learned from foreign legal systems and jointly enhance internal supervisory mechanisms, as a new opportunity to internal supervisory mechanisms of Taiwan’s Affiliated Enterprises.