| Summary: | 碩士 === 國立臺灣大學 === 法律學研究所 === 105 === Today, many countries rely on independent directors as a panacea for various corporate governance misfires that have received increasing attention because of corporate scandals. Independent directors shall be independent of corporate executives and can be the gatekeeper for shareholders’ interests. The legislators in Taiwan have granted public companies the right to designate independent directors in accordance with its bylaws in 2005, and then authorized the Authority that it may require particular public companies to designate independent directors. In 2013, it has become a mandatory compliance for the listed companies to designate independent directors.
There are still several problems on independent director after practice for a decade in Taiwan. This thesis first addresses the independence issue. The core purpose of maintaining the independence of independent director is to avoid undue influence from corporate executives and provide fair advice and decision for the corporation. Hence, the independent directors in Taiwan shall fulfill the legal requirement of independence. However, the legislators fail to consider situations that may influence the director’s independence. This thesis discusses the tenure of the director, one of the most debatable issues among U.S boardroom, and encourages the courts of Taiwan to focus more on the overall circumstances than the legal requirements when determining directors’ independence.
The independent directors could be designed to carry out extensive functions, but only two of them are stipulated in Taiwanese law, audit committee and compensation committee. Although the regulation is similar to that of the United States, the difference might severely undermine the goal of the regulation. This thesis reviews the role of the independent directors and then introduces a unique concept which is the senior independent director in the U.K. In addition, the most criticized aspects of the independent director are insufficient time-devotion, lack of incentives to perform on board, and reliance on executives for information. This thesis attempts to find out the solutions to the criticism based on the discussion among scholars.
The independent directors’ major mission is to monitor the companies they serve. The Delaware court had established the standards in Caremark case, which still applies nowadays, to review whether the independent directors fulfill their duty to monitor. The cases regarding the duty of care in the U.S court are connected with the Business Judgment Rule, which is different from Taiwan’s civil procedure. Hence, to what extent we could apply the Delaware cases to the cases in Taiwan as a legal principal is contemplated in this thesis.
The fourth chapter of this thesis is the relevant regimes governing a director’s liability under the U.S. law, including Business Judgment Rule, the limitation or exclusion of directors’ liability, indemnification and D&O insurance. The purpose of these four regimes is to protect the directors from frivolous lawsuits that might cause qualified candidates to refuse to take the office of board seats. While Business Judgment Rule and D&O insurance have been introduced in Taiwan by court judgment and administrative order, the limitation or exclusion of directors’ liability and indemnification have not. Under such context, I discuss the current situation, points out the shortcomings, and then suggests whether we shall further introduce the other two regimes.
Finally, this thesis introduces proportionate liability which has already been incorporated in Securities and Exchange Act of Taiwan and the related cases. Under proportionate liability, the defendant is responsible only for his own fault and does not bear the risk of the insolvency of his co-defendants. This thesis proposes to apply proportionate liability to independent directors both under Company Act and Securities and Exchange Act in order to balance the power and liability of independent directors.
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