- 英文摘要
- This article conducts a comparative analysis of the legal status and applicable law of foreign companies, with a focus on the legal systems of Taiwan and France. In Taiwan, foreign companies are governed by Article 4 of the Company Act, which adopts the principle of applicable law, recognizing a company’s nationality based on the law of its place of incorporation. This provision marked a shift away from the former recognition-based regulatory approach. The legal capacity of foreign companies is restricted under Taiwanese domestic law, particularly emphasizing the necessity of registering a local branch and allocating operational capital, in order to safeguard transactional security and protect local stakeholders. According to Articles 13 and 14 of the Act Governing the Application of Laws to Civil Matters Involving Foreign Elements, the internal affairs of a legal person are governed by the law of the place of incorporation. However, these provisions are broad in scope and lack detailed rules regarding issues such as corporate capital, shareholder liability, and governance structure. Moreover, the absence of implementing regulations or authoritative interpretations has the potential to result in inconsistent application by courts when resolving cross-border corporate disputes.
In contrast, French law distinguishes between French companies, European companies, and foreign companies (i.e., those incorporated outside the European Union). Traditionally, France has used the “real seat” (place of actual operation) doctrine to determine a company’s nationality and applicable law, aiming to prevent the use of nominal incorporation to evade legal obligations. However, the 2022 draft of the French Private International Law Code signals a doctrinal shift by applying the “law of the place of registration” and includes more comprehensive and systematic rules on company formation, capital structure, and shareholder liability. EU law, for its part, emphasizes the principle of freedom of establishment and likewise applies the law of incorporation. Taken together, this framework reflects a higher degree of harmonization, legal certainty, and transparency within the EU internal market.
Compared to the French legal system, Taiwan’s regulatory framework is characterized by a higher level of abstraction and regulatory indeterminacy, which may pose risks to legal certainty and consistency. The author suggests that Taiwan consider incorporating the real-seat principle as a supplementary connecting factor and draw on the French draft code to refine internal corporate rules. Such reforms would enhance alignment with international developments in private international law, strengthen legal predictability, and improve the protection of third parties engaged in cross-border commercial transactions.
- 目次
- 壹、前言
貳、法國國際私法上外國公司之認定
一、內國法層次：「國籍」的鑑別與公司的性質
二、外國公司鑑別的標準
三、歐盟法層次
參、法國國際私法上外國公司之準據法決定
一、傳統見解
二、2022年法國國際私法典草案
肆、我國國際私法上外國公司之認定
一、外國公司之鑑別
二、外國公司之限制
伍、我國國際私法上外國公司之準據法決定
一、立法體例
二、司法裁判
陸、結論
