Departmental Bulletin Paper 取締役の経営裁量権と任務懈怠責任 ―会社法355条の忠実義務を介して―
The Directors’ Discretionary Power in Management and the Liability for Neglect

廖, 海濤

(15)  , pp.159 - 179 , 2015-03-31 , 共愛学園前橋国際大学
ISSN:2187-333X
NCID:AA11548903
Description
In Japan, the Company Law(平成17年法律第86号)which took effect in May 2006 integrated several scattered laws, which thus far regulated companies, into a single Company Code of Law. Under the present Company Law, the relation between the company and the director is to be observed under the rules of commission (Article 330). Therefore, the director is responsible for observing the duty of good management as a contractor of the Civil Law Article 644. Liability arises when the director is deemed to have neglected the duty of good management.Besides, the duty of good management, and in particular, Article 355 of the Company Law, specifies that “the directors are responsible for observing the laws and ordinances as well as company statues and the decisions of the shareholders’ general meetings, and for loyally discharging their duties for a stock company.” In minority theories the duty prescribed in this article is different from the duty of good management, and is regarded as the duty of fidelity which requires that “the director should not attempt to gain any personal or third party profits by sacrificing the company or by abusing their position. In majority theories this duty is interpreted as something included within the duty of care and good management, and not as something which establishes any special duty of care and good management or any other duty.This paper reviews the responsibility of the company director, focussing on the directors’ discretionary power in management and their responsibility for neglect of duty. In particular, it will explore the responsibility which the directors bear towards the company and its systematic origin, arranging them in a definite order. Based on these premises, it will, furthermore, examine the characteristics of trends in the criteria for directors’ liability, espoused by recent theories which consider it not as a breach of the duty of fidelity in article 355 of the Company Law, but as relating to the duty of care and good management in article 644 of the Civil Law.
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