融資收購於我國實施之法令因應—以保護目標公司股東及債權人之權益為中心

Abstract

融資收購之進行，有其促進企業綜效、減少代理成本等益處，惟其易於過程中不當地犧牲目標公司股東及債權人之權益，故於法制上有針對此等利害關係人探討保護方式之必要。本文即以經營階層收購及融資收購活動中，應如何分別確保目標公司股東及債權人之權益為二大主軸，參考美國法制之經驗提出建議，以供我國立法者及司法者為參考。 以經營階層收購而言，依美國1934年證券交易法授權制定之Rule 13e-3及Schedule 13E-3，要求收購者需向SEC及目標公司股東揭露與系爭交易相關事實，並陳述是否確信此交易為公平及其依據，以彌補股東掌握資訊之不足。另目標公司之董事因負受託義務之故，需充分揭露其與系爭交易之利害關係，並經目標公司不具利害關係之董事多數決通過，實務上亦發展出特別委員會與「完全公平標準」，強化對股東之保護。 以融資收購而言，透過美國法中詐欺移轉法令之適用，目標公司之債權人多主張目標公司將資產設定擔保以獲取貸款之行為乃擬制詐欺移轉，而請求法院撤銷該行為，為求得適當維護債權人之權益，美國法院就要件之認定發展出突破條文文義之見解。其次，如因融資收購導致目標公司之財務陷於危機，美國法院普遍承認於公司破產或瀕臨破產時，債權人之受託人得向董事追究違反受託義務之責任，惟法院同時亦承認商業判斷法則之適用，以避免董事行為因此動輒得咎。 我國現行法下，得透過股份收買請求權與董事受託義務之規範，保障目標公司股東之權益，本文針對不足之處，提出得強化收購者之資訊揭露義務並具體化董事受託義務之建議。另就目標公司債權人權益之確保，揆諸我國現行法鮮有得以著力之處，故本文建議就債權詐害行為之解釋得參考美國法院之見解，另建構董事對公司全體債權人之受託義務。

Although the practice of the leveraged buyout (“LBO”) can promote general performance and reduce the cost of an enterprise, it is necessary to discuss methods of protecting parties interested in the legal system because it tends to sacrifice the rights and benefits of target shareholders and creditors in its implementation. The paper develops the two major axles of firstly how to ensure the rights and benefits of target shareholders and creditors in the management buyout (“MBO”) and secondly the LBO. It refers to legal experience in the USA and presents suggestions that might be referred to by our legislators and legal practitioners. As far as the MBO is concerned, Rule 13e-3 and Schedule 13E-3 formulated under the authorization of the Securities Exchange Act of 1934 of the USA requires that buyers disclose related facts to the SEC and target shareholders and state whether the transaction is fair and able to address the insufficient information known to shareholders. In addition, directors of the target company should fully disclose their interested relations with the transaction and should be trustworthy. This has also been voted on by a majority of directors without interests. In practice, a special committee has been developed with the “entire fairness” to strengthen the protection of the shareholders. As for the LBO, the application of the Fraudelent Transfer Act in the USA law indicates that most creditors of target companies hold that assets of target companies should not be used as guarantees for a loan in order to prevent the occurrence of fraudulent transfer, and they petition the courts to cancel such an act in order to properly ensure the rights and benefits of creditors. Courts of the USA have developed interpretations beyond articles on the basis of the confirmation of essentials. Secondly, in the event of falling into bankruptcy crisis resulting from the LBO, courts in the USA commonly accept that the entrusted creditors are entitled to inquire into the entrusting liabilities of directors. At the same time, courts admit that “business judgment rule” is applicable to prevent the occurrence where directors are blamed frequently for such a move. Under the current law of our country, the buyout petition rights of shares and entrusting liabilities of directors should be standardized to ensure the rights and benefits of the target shareholders. On the basis of insufficient points, the paper proposes that the liabilities of disclosure by purchasers should be strengthened and stipulated in detail as are the liabilities entrusted to the directors. In view of safeguarding rights and benefits of the creditors of target companies and the fact that the current laws of our country are rarely effective, the paper proposes that the interpretation of fraudulent transfer refer to that used by courts of the USA and the entrusting liabilities of directors to all creditors be established.