A Comparative Legal Study on the “de facto responsible person” of the Financial Holding Company in Taiwan

• Main Authors: Lin, Po Wei, 林柏葦
• Other Authors: 謝易宏
• Format: Others
• Language: zh-TW
• Published: 2013
• Online Access: http://ndltd.ncl.edu.tw/handle/f4v52d

碩士 === 東吳大學 === 法律學系 === 101 === In company’s practice, some Taiwanese companies are used to creating various position titles for personnel other than those defined in Article 8 of the Companies Act 2001 (the “Companies Act”). Under the circumstances, even though a person acted as a “responsible person” and took all major decisions, he/her did not have to take legal responsibility for actions because he/she might not be treated as a responsible person under the law. This is what is called “de facto directors” or “shadow directors”. In other words, “de facto directors” or “shadow directors” would refer to a person who is acting as a director of the company and fulfilling the functions of the office but who is not called a director. This may happen because the person was never properly appointed as a director but nevertheless continues to act as a director of the company. the person assumes to act as a director, claims to be so or is held out by the company as being a director. In order to close the legal loopholes to make “de facto responsible person” take responsibility, the Companies Act was revised with reference to British legislation (including Companies Act 2006 §§ 250, 251 and courts' opinions regarding “de jure directors”, “de facto directors” and “shadow directors.” ) and took effect on January 4, 2012. Article 8 Section 3 of the Companies Act 2012 provides that “For a company whose shares have been issued in public, a non-director who de facto conducts business of a director or de facto controls over the management of the personnel, financial or business operation of the company and de facto instructs a director to conduct business shall be liable for the civil, criminal and administrative liabilities as a director in this Act, provided, however, that such liabilities shall not apply to an instruction of the government to the director appointed by the government for the purposes of economic development, promotion of social stability, or other circumstances which can promote public interests.” However, are “de facto responsible person” really subject to duties and liabilities as required by relevant laws and regulations by this revision of law? Moreover, the Companies Act are frequently used for interpreting, explaining and applying to other financial codes and vise versa, this, it is worth observing how the Companies Act 2012 applies to these financial codes. This study aims to clarify the content of “de facto responsible person” in Article 8 Section 3 of the Companies Act 2012from the perspective of comparative law by comparing and elaborating the legal concept of “de facto directors” or “shadow directors” in UK company legislation and the “controlling shareholders” in U.S. company legislation with the R.O.C Companies Act. Additionally, the study is also to explore how the concept of “de facto responsible person” is applied to the financial holding company system through the comparative analysis. It is found out there is a gap between the law and the practice. At last, the study proposes some conclusions and suggestions for law-makers reference in the future.