| 摘要: | 當董事之行為有侵害公司利益之虞時，我國係以監察人對董事提起訴訟為原則。在股東向監察人請求對違法董事提起訴訟之後，若監察人積極介入調查者，監察人得依公司法規定行使其監察權限，包括財務業務檢查權、董事會列席權、表冊查核權、違法制止請求權、專業人士聘任代表權、股東會召集權等。然我國企業間董事與監察人關係密切時有所聞，無法期待監察人從事積極的內部監控。因此，股東代位訴訟之目的在於健全公司治理，防止董事與監察人失職，當監察人自被請求三十日內不為起訴或消極對待時，少數股東得代公司對董事提出訴訟。亦即在少數股東已窮盡內部救濟為前提之下，給予少數股東例外的救濟方式，以之為最後一道防線。惟立法者似過度著重於避免濫行訴訟，造成現行股東代位訴訟之要件過於嚴苛，降低股東提起訴訟之誘因。此外，股東即便符合要件而提起股東代位訴訟，惟在現行法下股東資訊權仍嫌不足。股東雖得向法院聲請選派檢查人，然檢查人之檢查範圍恐小於股東請求之範圍；又檢查人之檢查權限小於監察人之監察權，若本應由監察人行使監察權，卻因監察人怠於行使職權，而使股東僅得自行聲請檢查人，恐損害股東應得之權利。因此，本文希冀在股東代位訴訟中適度擴張股東資訊權，目的係為了使股東獲得其原本應有之權利，使之能擁有抗衡違法董事之武器，增添股東提起代位訴訟之誘因，進而活化股東代位訴訟制度。
When the action of the directors may infringe on the benefit of the corporation, our law is based on the principle of which supervisors should file lawsuits against the directors. After the shareholders’ request the supervisors to bring suits against illegal directors, if the supervisors aggressively get involved into the investigation, they can exercise their supervisory power including the financial and business inspection right, the present right of the board of directors, the statistical form inspection right, the right to stop illegal conduct, the right of hiring professionals, and the right of convening shareholders' meeting. However, the directors and the supervisors of the corporation are often intimately related, we can't expect the supervisors to conduct interior supervision aggressively. Therefore, the purpose of the derivative suits is to robust corporate governance and to avoid the directors and the supervisors not fulfilling their obligations. When the supervisors didn't bring suits or treated passively within 30 days of being requested, the shareholders can bring the derivative suits. That is under the premise that shareholders have engaged all the interior relief, they are given an exceptional relief for being the last perimeter.Unfortunately, the legislator seems overly put emphasis on avoiding excessive suits, which causes the requirement of the derivative suits to be too strict so to lower the incentive of bring the suits. Moreover, even if the shareholders meet the requirements of the derivative suits, the information right of shareholders under the current law still seems insufficient. Although the shareholders can apply to the court to select the inspectors, the inspective range of the inspectors may be less than the request range of the shareholders, and the supervisory power of the supervisors. If the supervisors neglect their obligation to exercise their supervisory power, the shareholders can only apply for the inspectors and this may infringe the shareholders’ rights of what they deserved. Therefore, the purpose of this article is to moderately expand the information right of the shareholders in the derivative suits so that the shareholders can obtain their original rights to contend the illegal directors, enhancing the incentive of shareholders to take the derivative suits , and furthermore activating the system of derivative suits. |
