論我國公司法令遵循制度之重構

公司法令遵循於公司治理上佔有重要之地位。我國自兆豐銀行紐約分行因違反美國反洗錢法而被紐約州金融服務部裁罰後，公司法令遵循之議題開始備受關注。為確保公司遵守相關法令及企業倫理，公司須建立法令遵循制度。法令遵循制度為公司內部控制制度之一環，而內部控制制度通常以源自會計領域的COSO整合架構作為參考依據。因此，如何將涉及法律風險與法令解釋適用之法令遵循制度，合理且適當地納入內部控制制度中，即有必要加以探討。此外，公司法令遵循既在避免公司或員工違反法令，乃與董事之監督義務密切相關，董事為盡其監督義務，必須建構有效的法令遵循制度以監視公司之營運情形。日本公司法令遵循制度與內部控制制度之發展，除了參考COSO整合架構報告之外，司法實務之實踐尤其具有重要的影響力，不僅使董事之監督義務內涵具體化，也促進形成法之意義的法令遵循制度。由於日本之公司法制與我國法有諸多相似之處，日本法對法令遵循制度之定位及有關法令遵循制度之內涵，深值我國法借鑑。因此，本文詳細介紹日本法上公司法令遵循制度及內部控制制度之相關實務見解、學說與制度內容，以供參照。本文認為，我國法上之法令遵循制度存在許多問題，實有重新建構之必要。質言之，其一，欠缺關於該制度之法學上討論，無法建立具有法之意義的法令遵循制度；其二，內部控制制度未切合我國公司法制之治理結構；其三，內部控制制度之設計對法令遵循制度定位錯誤，導致法令遵循制度未能發揮有效的監督功能。基此，本文以企業法律環境為始，說明法令遵循制度與內部控制之基本內涵，接著介紹日本法制，繼而觀察我國法規範與實務見解之問題，再從比較法之觀點，針對各項問題提出解決之建議，期對制度之改革與學理之形成有所助益。

關鍵字

法令遵循制度；內部控制；董事監督義務；公司治理；守門人

並列摘要

Corporate compliance plays an important role in corporate governance. While it was not until Mega International Commercial Bank fined by Department of Financial Services of New York for violating the state’s anti-money laundering laws that the topics of corporate compliance attracted much attention in Taiwan. A company has to establish the corporate compliance program to ensure abiding by laws, regulations, and business ethics. Corporate compliance is one aspect of internal control. When it comes to internal control, the COSO - Integrated Framework from Accounting is often used for reference. On the other hand, corporate compliance involves legal risks and academic exegesis at laws and regulations. Therefore, how to integrate corporate compliance program with internal control system and to adapt them to each other are critical issues to deal with. Besides, corporate compliance which serves as a method for avoiding a company as well as its employees violating laws and regulations is closely related to director’s duty to monitor. Consequently, directors must create effective corporate compliance program for overseeing the day-to-day operations of the company to fulfill their duty to monitor. In Japan, in addition to the COSO’s framework, opinions in judicial practice have had great influences on the development of corporate compliance program and internal control system. Not only has the latter concretized director’s duty to monitor, but also has helped forming the legal concept of corporate compliance program. Due to many similarities in corporate law between which in Japan and in Taiwan, the way Japanese law positioned corporate compliance and the legal meanings of corporate compliance program are worth learning. This thesis thus introduced Japanese theories, regulations, and judicial opinions concerning corporate compliance program and internal control system in detail. The author pointed out several problems of the corporate compliance program required in Taiwanese laws and regulations. These problems mainly lie in: (1) few discussions and studies in jurisprudence causes lack of jurisprudential meanings of corporate compliance program; (2) the internal control system is not correctly adapted to the fundamental corporate governance structure of corporate law in Taiwan; (3) being positioned in error, the corporate compliance program cannot work effectively for monitoring. Those indicated that the corporate compliance program in Taiwan is crying out for reforming and restructuring. This thesis therefore began with the legal environment where corporates are at the present time, and then explained the basics of corporate compliance program as well as internal control. Furthermore, introducing specifics of jurisprudential issues respecting corporate compliance in Japan was followed by those in Taiwan. Finally, a comparative law approach was taken for problem-solving and providing suggestions and advice. The author looks forward to the thesis being helpful for reforming and restructuring corporate compliance in Taiwan.