| Summary: | 碩士 === 國立臺灣大學 === 法律學研究所 === 106 === A personal law of corporation is a doctrine that attached to the corporation. It means that the law that regulates the corporate legal status should not change because of the corporate location. Including but not limited to decide the matters of corporate personality and internal organization. A personal law of corporation is mainly about governing the internal affairs of corporation and it uses incorporation and domicile as connecting factors mostly. lex incorporationis, the internal affairs doctrine that is applied in England and most of the states in the U.S. provides that the internal affairs of a corporation are governed by the law of the state where the corporation is chartered.
Influenced by common law choice-of-law doctrine, Taiwan amended private international law, “Act Governing the Choice of Law in Civil Matters Involving Foreign Elements” in 2010. Article 14 accepts the concept that a personal law of corporation is mainly about governing the internal affairs of corporation and for the purpose of consistency and predictability of the applicable law of corporation internal affairs, it also changes the connecting factors of personal law of corporation from domicile theory to incorporation theory.
Due to the internal affair doctrine, application of law becomes more convenient and predictable, but it also creates some issues. A lot of corporations incorporate in a foreign jurisdiction in order to minimize liability, taxes and regulatory interference even if the corporation has minimal business contact with the incorporated state and the principal place of business, source of fund and domicile of shareholders are still domestic. In this scenario, it will harm the right of the shareholders and creditors if we just apply incorporated state law and ignore domestic law.
In this study, we try to examine the context of the internal affairs doctrine, which is a judge-made choice of law in U.S. We also concentrate on observing Section 2115 of the California Corporation Code which involves the regulation of pseudo-foreign corporation. After that, we will discuss the applicable law of the cases that one of the parties is an offshore company with true owner as Taiwan citizen.
Clarifying the scope and coverage of internal issues is a prerequisite for application of internal affairs doctrine. Under the contractual theory of the corporation, shareholders basing on contract principle to choose the law that governing the corporation''s internal affairs; therefore, it should not get the power to bind third parties. However, in some situation, the operation and governance of the corporation involve third parties’ interests essentially, and making the relationships between internal and external affairs seem ambiguous. In addition, when corporate disputes are foreign- related, and are concern with public benefits or other legal relationships at the same time, it is important to explore the subjects of characterization and choice-of-law. All of above are issues that we are facing when we discuss the practice in the application of internal affairs doctrine.
This thesis attempts to provide a different approach via reviewing and analyzing the practical judgments and scholar’s views, and hopes that this will contribute to the discussion and research on the law applicable to corporation matters involving foreign elements in Taiwan.
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