論股份有限公司監督機關之設計－比較日本與臺灣的繼受法制談起

日本明治23年商法在移植德國1870年商法監察人制度時，並未移植監察人選解任董事之規定，而由股東會負責選任監察人及董事，形成獨特並列式雙軌制，而因監察人僅能橫向監督董事會，故其監控效能有限。日本雖多次修法強化監察人權限，惟成效不彰；後於2002年引進美國單軌制藉以改善現況，帷不受企業青睞，而近期自創監察等委員會此種監督機關則廣受利用。從其修法歷程可知，當法制移植不全產生問題時，立法者應適時調整之，而當法制提供多種監督機關選項時，宜讓企業自行採擇符合其需求之機關設計。我國監察人制度深受日本法影響，亦存有同樣問題，但長期以來未見大幅修法改善，此等立法怠惰促使證交法另起爐灶，引進獨立董事、審計委員會等美國單軌制設計，作為公發公司選項。惟單軌制與雙軌制併存所生問題，未見任何配套措置，且強制適用單軌制之公司範圍亦逐步擴大，凡此均凸顯我國未處理法制移植不全之問題。從日本法之經驗，我國實應再度檢視監察人制度強化其功能，而公司法與證交法之主管機關應協力整合監督機關設計之相關規範。又，我國法制提供不同之監督機關設計，宜仿日本法讓制度間自由競爭，而非強制公司採擇特定類型之監督機關。

關鍵字

監察人；雙軌制；單軌制；獨立董事；審計委員會；法制移植

並列摘要

Even though in 1890 the Japanese Commercial Code replaced the German Commercial Code of 1870 in favor of the new law's blueprint, it did not adopt the German rule that supervisors are entitled to appoint or dismiss directors. Based on this, the unique Japanese style of a parallel two-tier board system was formed. Because the supervisors simply oversee the directors without being entitled to make changes to the positions, the monitoring function is limited. Since then, the Japanese Commercial Code has been revised many times to enhance the supervisors' power by other ways, but it is still flawed. In 2002 the American style of a one-tier board system was adopted as a new option, but it has not been embraced in the Japanese business world. Instead, the recently created audit committee appears to be more popular. According to the Japanese experience of transplanting monitoring mechanism systems from other jurisdictions, there are two lessons for us to learn. First, and more generally, any law should be revised regularly whenever it shows defects. Second, if multiple monitoring mechanisms are offered in company law, it is better for a company to be given a default rule rather than a mandatory rule, so it may choose the rule that fits it best. The monitoring mechanism in Taiwanese Company Law is deeply influenced by the Japanese Commercial Code, and thus the same problem has arisen. To resolve this problem, instead of launching a huge-scale reform of the system, the legislative body has chosen to modify the Securities Exchange Act in which a one-tier board system (e.g., independent directors and an audit committee) has been adopted for listed companies to choose. However, the legislative body has not taken any measures to resolve the issues that have arisen from the coexisting of two-tier board and one-tier board systems, and the authorities have forced many listed companies to adopt the one-tier board system. Considering Japan's experience with monitoring mechanism reform, this paper argues that it is noteworthy to review the monitoring mechanism in Taiwanese Company Law to enhance its function and to encourage cooperation of the authorities in drafting a Company Law bill and Securities Exchange Act with consistency. In addition to following the Japanese model, companies should be allowed to choose a monitoring mechanism that fits their needs rather than being mandated to adopt a specific one.