<総合判例研究>会社の代表権限濫用行為 (1)
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概要
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1. The scope of the powers of the directors of the company accords with that of the powers of the company, because the company is an artificial person acting only through the directors as the organs of natural persons. Whether the company is bound or not by an act which prima facie is within the powers of the directors but which is their exercise of the powers for the interests of themselves or other persons, not for the company, is the question of the effect on the abuse of the powers of the directors. This article is intended to treat of this question through the survey of the precedents. 2. In dealing with this question, the precedents are composed of two different judicial constructions. The one consists of the decisions dealing with it in reference to the scope of the powers of the company, and the other consists of the exercising the powers of the directors. The former, in early time, decided that the abuse of the powers not effected on the company by the reason that the act was ultra vires the company, (the Supreme Court decision of Jan. 21,1921), but since then changed its point of view from the subjectivism to objectivism, and decided that the act was made binding on the company, because it was intra vires the company as far as it is prima facie within the powers of the company (the Supreme Court decision of Feb. 7,1938). The latter has consistently taken the objective view that the scope of the powers of the directors must be decided objectively, so that the abuse of the powers has been the question of the internal relations between, the directors and the company, and therefore the company has been bound to the third persons by the acts as far as it has been prima facie within the powers of the directors (since the Supreme Court decision of Mar. 20,1906). These precedents bear the same result that the company is bound by the abuse of the powers of the directors, and they can be supported with a view to protecting persons dealing with the company. But the latter is logical in so far as the effect on the abuse of the powers of the directors is concerned. It is because the powers of the directors are based on the assumption that they are intra uires the company, since there is no power of the directors ultra uires the company. 1 27 Daishin-in Minjihanketsuroku (English title : Supreme Court Report on Civil Cases) 100 (1921). 2 17 Daishin-in Minjihanreishu (English title : the above) 50 (1938). 3 12 Daishin-in Minjihanketsuroku (English title : the above) 475 (1906). To be continued.
- 関西学院大学の論文
- 1964-12-30
関西学院大学 | 論文
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