<総合判例研究>会社の代表権限濫用行為(2・完)
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概要
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3. The purpose of the doctrine that the abuse of the powers of the directors is made binding on the company is to protect persons bona fide dealing with the company, never to protect persons dealing with the directors in the knowledge of the abuse of their powers. The precedents that the company is not bound to persons dealing with the directors in the knowledge of the abuse of their powers are composed of two judicial constructions. The one applied Section 54 of the Civil Code (Ss. 78,147 and 261 of the Commercial Code) as to the restriction on the representative powers of the directors to this case, so that the abuse of the powers of the directors was beyond the representative powers, and therefore was invalid to those dealt with the directors in the knowledge of that fact (the Supreme Court decision of Mar. 30,1935). The other applied Section 93 of the Civil Code as to the mental reservation to this case, so that in the abuse of the powers of the directors, they have no intention of acting for the benefit of the company, and their acts was invalid to those dealt with the directors in the knowledge of that fact (the Supreme Court decision of Sept. 5,1963). However, these precedents may be unsupported by the reason as follows : To the former, that the abuse of the powers of the directors is not beyond their powers, only, they exercise them within their powers for the interests of themselves or other persons, not for the company. To the latter, that in the abuse of the powers of the directors, they have the intention that their acts should be made binding on the company, and their exercise of the powers is valid since there is the expression of their intention. So, there is the theory of the abuse of the rights that the abuse of the powers of the directors is made binding on the company, but persons dealing with the directors in the knowledge of that fact can not exercise the acquired rights to the company, because it is the abuse of the rights. This theory is logical as a whole in so far as the effect on the abuse of the powers of the directors is concerned. 4. The above doctrine of the abuse of the powers of the directors is concerned with the problem of the external relations between the company and persons dealing with it, but not with the problem of the internal relations between the directors and the company. In exercising the powers conferred on them by the company, the directors must act bona fide for the benefit of the company. If they abuse their powers for the interests of themselves or other persons, not for the company, it become a breach of their fiduciary duty, and therefore they are liable for the damages as a result of the breach towards the company. 4 3833 Horitsu Shinbun (English title : Law News) 17 (1935). 5 17 Saiko Saibansho Minjihanreishu (English title : Supreme Court Report on Civil Cases) 909 (1963).
- 関西学院大学の論文
- 1965-03-30
関西学院大学 | 論文
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