論獨立董事之財報不實民事責任的減輕

Abstract

因應全球公司治理改革趨勢，我國自2006年起引入獨立董事制度，並逐步以審計委員會取代傳統監察人機制，以強化董事會監督功能，提升財務資訊揭露之透明度與可信度。獨立董事雖不參與公司日常經營，卻在財報不實案件中，經常與實際負責決策之董事或高階管理層共同被訴為損害賠償義務人。此一現象顯示現行法制對其權責配置仍存失衡，致使獨立董事須承擔與其職務性質不相稱之法律風險，進而削弱其作為公司治理中立監督者之功能與正當性。因此，實有檢討現行制度、明確釐定其法律責任範圍，並建構合理責任減輕機制之必要。 本文運用文獻分析與法院實證研究方法，探討獨立董事在財報不實訴訟中之民事責任，並檢視證券交易法第20條之1第5項所揭示之比例責任制度在實務中的適用情形。實證分析近年17件法院判決發現，法院多以善良管理人注意義務作為責任認定標準，未充分考量獨立董事在資訊取得、職務性質及專業背景上的限制，致使諸如未參與財報編製、合理信賴會計師查核意見或資訊不足等抗辯理由，多數未獲司法實務採信。再者，責任分攤比例差異顯著，從0.2%至50%不等，部分個案因投資人總體求償金額高達數億元，致使獨立董事即使僅負部分責任，實際仍須分別承擔數千萬乃至上億元之賠償責任，此顯示比例責任理念與實務適用間存在落差。 美國法制對獨立董事於財報不實案件中之責任，採重大過失標準，並視財報是否經專業簽證而調整審查義務之輕重。另輔以章程免責條款、補償機制與董事責任保險，實現責任有限與監督功能之平衡。反觀我國，雖自2022年起強制董事投保責任保險，然對獨立董事仍欠缺依職責特性設計之差異化責任規範。 本文建議：（一）應區分獨立董事與一般董事於財報不實事件中之歸責機制，獨立董事不宜當然承擔民事賠償責任，宜以行政處分如加重罰鍰或限制再任作為規範手段替之；（二）責任判斷應以重大過失作為認定標準，並應制定獨立董事財報審查準則及責任審查標準，以提升實務見解之判決一致性與可預測性；（三）引入免責條款與責任上限制度，使獨立董事責任配置之合理化。唯有透過差異化責任制度設計，方能發揮獨立董事之財報監督功能，強化公司治理與投資人信賴。

In response to global trends in corporate governance reform, Taiwan has introduced the independent director mechanism since 2006 and gradually replaced the traditional supervisory board with audit committees, with the aim of enhancing the supervisory function of the board and improving the transparency and reliability of financial information. Although independent directors do not participate in the day-to-day operations of the company, they are frequently co-defendants alongside management in civil actions arising from financial misstatements, raising concerns about imbalances between responsibility and authority, as well as the potential for disproportionate liability. This thesis adopts both literature review and empirical analysis to examine the civil liability of independent directors in lawsuits involving financial misstatements, focusing in particular on the practical application of the proportionate liability mechanism prescribed under Article 20-1, Paragraph 5 of the Securities and Exchange Act. An empirical analysis of 17 court judgments issued in recent years reveals that courts commonly adopt the duty of care of a prudent manager as the standard for determining liability. However, this approach often fails to adequately consider the constraints independent directors face in terms of access to information, the nature of their roles, and their professional expertise. As a result, defenses such as non-involvement in financial statement preparation, reasonable reliance on auditors, or lack of information are frequently rejected by the courts. Moreover, the allocation of liability percentages varies significantly, ranging from as low as 0.2% to as high as 50%. In some cases, independent directors have been ordered to bear tens or even hundreds of millions of New Taiwan Dollars in damages individually, highlighting a significant gap between the theoretical concept of proportionate liability and its practical implementation. In contrast, under the U.S. legal framework, civil liability for independent directors in financial misstatement cases is assessed based on a "gross negligence" standard, with liability further differentiated depending on whether the financial statements were professionally certified. The U.S. regime provides for greater flexibility in the standard of review and is supplemented by mechanisms such as exculpation clauses, internal indemnification arrangements, and directors and officers (D&O） liability insurance, thereby achieving a balance between accountability and the effective functioning of the corporate governance. Although Taiwan has mandated D&O insurance coverage for all directors since 2022, it has yet to establish a differentiated liability of the board specifically tailored to the unique functions of independent directors. This thesis proposes three key reforms: (1） the attribution of liability in financial misstatement cases should distinguish between independent and executive directors. Independent directors should not be definitely subject to civil liability but rather regulated through administrative sanctions, such as higher fines or disqualification from reappointment; (2） “gross negligence” should be adopted as the standard for imposing civil liability, and clear the Independent Director Financial Review Guidelines and the Liability Assessment Standards should be established to enhance consistency and predictability in judicial practice; (3）the introduction of exculpation clauses and liability caps is recommended to rationalize the liability structure applicable to independent directors. Only through the implementation of a differentiated liability regime can the supervisory function of independent directors over financial reporting be effectively realized, thereby enhancing corporate governance and strengthening investor confidence.