借名法律關係之研究-以公司經營為中心

Abstract

借名法律關係廣泛存在於我國社會經濟活動之中，我國司法實務雖肯認非違反強制禁止規定及公序良俗之借名登記契約效力，然借名行為不惟存在於一般私人之間，更廣泛為企業所用，為公司經營手段所必須，因而衍生之各類商業問題頗值探討。 借名契約為民法典未明文規定之無名契約，現行實務見解多以類推適用民法委任契約，然於現今千變萬化之企業活動中，僅類推適用民法委任關係恐尚有未足，為保障交易安全，對於借名與出名之相對人及第三人應以更周全之方式加以規範，在契約自由原則及適切的法規範下發展出合宜的借名登記契約制度。 本文將藉由實務及學說見解定義借名登記契約之性質及法效性，並以現存企業常見之不動產借名登記、車輛靠行營業、借牌承攬工程及連鎖加盟營業等各種借名行為類型與因借名登記行為於商業活動中可能觸及之民、刑、公法等法律問題進行探討，參酌實務及學說之見解，期能提出公司借名行為所衍生法律問題解決之道。

The legal relationship of borrowing other’s name for registration exists extensively in our country’s social and economic activities. Even though judges affirm that borrowing other’s name does not violate an imperative or prohibitive provision of the act, as well as is not against public policy or morals during the judicial practices, it happens among private individuals. More commonly, that act of borrowing other’s name is performed by companies as a business strategy. Therefore, the various types of business problems derived from this type of judicial act in the business field are worth exploring. A borrowing name contract is an innominate contract, which is not revealed in the Civil Code. Current practices resolve the judicial issues by the analogous application of the provisions regarding the mandate. However, in today’s ever-changes corporate activities, the analogy is still insufficient to ensure the security of transactions. Regulations should be implemented to regulate the parties who borrow names, the parties who lend names, and the third parties. A system should be developed based on the principals of freedom of contract and appropriate laws and regulations. The article defines the nature and legal effectiveness of the borrowing name contract through discussing the practical and academic opinions. Furthermore, legal issues associated with the civil, criminal and public laws happen during the acts of borrowing names in the business will be examined. The common acts performed include registering real estate owned by existing companies under other’s name, borrowing the business name of the taxi or freight business, borrowing other’s license to sign contracts of construction, opening franchise business and etc will be examined. Reference to judicial practices and academic opinions, a solution to the legal problems derived from the company’s borrowing names activity will be proposed.