法令遵循與經營判斷法則之研究

法令遵循此一概念於國際上日漸重要，我國亦於過去十年至二十年間陸續要求銀行與公開發行公司之內部控制制度需達到或包含法令遵循。然而不論係銀行或公開發行公司之弊案並未就此而絕跡，甚至一般公司成為犯罪主體或違反行政規範之情形亦時有所聞。因而，探究我國現行之法令遵循制度是否足夠完善僅係重點之一，尚必須研究一般公司是否亦必須建置法令遵循機制。除此之外，建置法令遵循機制是否被涵蓋於公司負責人之受託義務內？此涉及受託義務是否包含負責人之監督義務。而在討論此一議題時，因我國已有實務判決採取「經營判斷法則」（亦有稱為「商業判斷原則」、「經營判斷原則」），故對於經營判斷法則之承認或引進與否亦可能有所影響，乃至於法令遵循會如何與之交疊均值吾人思考。綜上，本文將探討現行法令遵循制度是否完善、一般公司是否亦應建置法令遵循機制，以及法令遵循與經營判斷法則將有如何之交疊關係。

關鍵字

受託義務；監督義務；法令遵循；經營判斷法則

並列摘要

The concept of compliance with laws and regulations has become increasingly important in the world. In the past ten to twenty years, our country has successively required that the internal control systems of banks and public companies must meet or include compliance with laws and regulations. However, no matter whether it is a bank or a public company, the malpractice case has not disappeared, and even the general company has become the subject of the crime or violated the administrative norms. Therefore, it is just one of the key points to explore whether our country's current legal compliance system is perfect enough. It is also necessary to discuss whether general companies must also establish a legal compliance mechanism. In addition, is the establishment of a legal compliance mechanism covered by the fiduciary duties of the responsible person of the company? This involves whether the fiduciary duty includes the supervisory duty of the person in charge. When discussing this issue, since our country has already adopted the "business judgment rule" in practical judgments, the recognition or introduction of the business judgment rule is also an issue. That might have an impact, and even how legal compliance would overlap with that means we are thinking about it. To sum up, this article will discuss whether the current legal compliance system is perfect, whether general companies should also establish a legal compliance mechanism, and how the overlapping relationship between legal compliance and business judgment rules will be.