從國內併購案例探討併購之法制

Abstract

近年，由於併購手段已成為全球企業快速擴張版圖，迅速成長之主要工具。而敵意併購之手段相對也就日益扮演重要之角色。然而，國際間各國之立法例雖然認同敵意併購作為併購手段之一，且被賦與監督目標公司經營者之經營績效之任務。但目標公司之經營者，尤其是董事會，對於敵意併購者可否採行防禦措施，以及得採行如何之防禦手段，與如何判斷防禦行為是有利於公司本身，而非出於自身經營權等私利之維護，各國則未必一致，本文前半部分則是介紹併購中較具爭議之敵意併購制度，各國法制之現狀，並比較合意併購與敵意併購之效益之區別。 國內累積之併購案例亦逐年增加，就併購過程無論手段是合意或敵意，常衍生諸多法律問題，或游走於合法或非法間之灰色地帶。本文後半段則舉出近二、三年間發生之併購個案，可能產生之爭議為分析，例如：以董事會撤銷公開發行之方式規避證交法強制公開收購之適用，使大股東與董監可順利售股，獨享控制權移轉之溢價，小股東則失去交易平台而求售無門之不公平現象。其次，政府配合陳總統二次金改之政策，加速公股金融機構股權之釋出，尤其是公股未具主導權之金融機構，然釋股過程或經營權之移轉遭致輿論諸多批評，甚或衍生弊端，本文亦就個案分析並提出建言，裨供修法參考，以期待落實兼顧公平與公益之釋股過程。

In recent years, Merger and Acquisition (M&A) has become the primary tool for enterprises to extend and develop their domains in the worldwide market. Correspondently, hostile takeover also plays an important role under this trend of M&A. More and more law makers and the legislation of many countries accept that hostile takeover is also a kind of M&A, and may have the function to supervise the target company’s performance. However, for the managers of the target company, especially the board of directors, can they make any defense to the hostile takeover? What kind of defense may the target company use? How can we judge that the defense made by the managers or the board of directors is advantageous to the company, not for the purpose to protect the management and other self interest? There is no common consensus for the above questions in the legislation. The first part of this article introduces the recent legislation related to the hostile takeover in different countries, and compares the effect of agreed takeover and hostile takeover. The cases of M&A in Taiwan are cumulatively increasing every year. No matter agreed takeover or hostile takeover, many legal issues, or some issues that can’t be decided legal or illegal clearly, are happened during the procedure of M&A. The second part of the article illustrates several M&A cases and analyzes the possible legal issues, for example, the board of directors revokes tender offer to evade the application of compulsory tender offer in the

Securities and Exchange Act, so the shareholders who own the majority shares, directors and supervisors can sell the shares and acquire the premium of transferring the shares; on the contrary, the shareholders in public lose the platform of transaction and can not sell their shares. In addition, to operate President Chen’s policy of “Second Financial Resolution”, the government speeds to release the shares of financial entities and banks which owned by the government, especially to release the shares of the financial entities that the government does not take the controlling rights. However, the procedure of shares/controlling rights transferring incurs many arguments and abuses. This article analyzes these cases, provides some suggestions to the related authorities Ministry of Finance, and Financial Supervisory Commission, Executive Yuan for their reference, and hopes to fulfill the procedure of shares release on the fair and public benefit basis.