以財務資訊揭露為基礎之公司董事賠償責任研究

Abstract

近10年來，臺灣陸續爆發上市或上櫃公司發佈不實財務報表事件，因此攸關發行公司董事責任的議題備受重視，但歷經數次法令修正後，目前在立法及實務上仍缺乏對於董事應負過失責任比例的判斷標準。本文針對實務上17家發生財務危機公司的案例，從代理理論及資訊不對稱等經濟理論觀點出發，歸納一般公司董事會運作特性，並釐清董事在公司的角色，以整理及歸納分析為研究方法，企求為《證券交易法》第20條之1關於「董事過失責任比例」提出判斷及衡量之指標，促使法律適用與實務運作能夠更為貼近。 本文分析歸納17家公司發生財務危機之原因，發現這些公司為了隱匿負責人侵占或挪用公司資產，而對財務報表關於現金及約當現金、其他應收款、預付款、暫付款、長期投資、營業收入、關係人交易等會計科目或其附註事項等資訊為不實的揭露或說明，而且上述17家財務危機公司的董事會特性，普遍存在「股權集中」、「董事兼任經理人員」，及「家族企業」等現象。 本文研究摘要如下： （1）當公司財務報表發生資訊揭露不實，一般董事縱有過失，應審查是否存有取得資訊優勢的董事，故意隱匿資訊的情事。如確有隱匿資訊情況，一般董事因遭欺瞞、資訊不全，而無法正確判斷，其應負的過失責任顯然應予減輕。 （2）由於一般董事掌握資訊過於片段，除其確實參與財務報表的實際製作外，如僅因未善盡注意義務而認定責任，應該降低其必須承擔的過失程度。

In the last 10 years, a number of companies listed in TSE or GreTai have released phony financial statements to the public. The series of events triggered off the issue of responsible directors and has attracted much of the attention from the public. There are several amendments of laws but there is still no objective standard for determining the negligence of directors and their proportion of accountability under law and in practice. In this paper, 17 companies in financial crisis were taken as cases in the study on the basis of the agency theory and asymmetries of information with an attempt to generalize the operation of the boards generally practiced in the companies and clarify the role of the directors in the company. Data were complied and inductive-analysis method is adopted in the study. This paper is paper is an attempt to propose the standard for judgment under Article 20-1 of the “Securities and Exchanges Act” on “the proportion of accountability on negligence of directors in order to narrow the gap between applicable law and practice. The causes of financial crisis of the 17 cases in point will be traced. The findings showed that these companies attempted to conceal the facts of conversion or embezzlement of company assets by deputy agents of the companies thereby the provided false accounts in the financial statements containing information under the account titles of cash and cash equivalents, other receivables, prepayments, temporary cash receipts, revenues, current accounts of related parties. There are also characteristics common to all 17 companies in financial crisis. They are “centralization of ownership”, “directors holding position in the management”, and “family business”. The summary of this paper is: (1) If the information disclosed in financial statements of specific company is found false, review if the directors who have an advantage to access to information have willfully conceal material facts even though all other directors shall be held responsible for negligence. If so, the accountability of all other directors shall be not as severe as the faulty directors because they are blinded from full information and cheated to the extent that they made improper judgment. (2) All other directors could just access to partial information and are just involved in the preparation of financial statements. Their responsibility in negligence shall be not as severe just because they failed to exercise care under due diligence.