上市公司私有化交易比較與觀察——以經營層收購為路徑之分析

Abstract

私有化交易源於英美，其本質是上市公司管理層通過收購中小股東持有之流通股，將其擠出，實現上市公司退市的目的。在亞洲地區以香港、新加坡等資本市場應用較多。近年來臺灣私有化交易數量顯著攀升，中國大陸企業於境內外上市者皆有涉及私有化交易之案例，結合臺灣《企業併購法》的歷次修訂，探究私有化交易制度之機理有助於企業併購制度之完善。 私有化之路徑通常為經營層收購，即上市公司控股股東、實際控制人、董事等經營層成員或其關聯方作為收購方取得中小股東持有之股份。該交易之根本系經營層與中小股東間的博弈。但因經營層得控制交易發動之時點、交易方案等資訊以及交易後續之安排，故此交易之雙方議價能力懸殊，形成資訊不對稱。為平衡經營層與中心股東之利益，私有化制度之目的在於使中心股東能夠獲得其應有之利益。 參酌發達資本市場之法制，保護中小股東之途徑在於規範經營層收購之程序。以交易之流程為索引，事前設立特別委員會或要求於充分揭露包含利益衝突等資訊；事中則控制股東會決議通過之門檻及要求利益衝突之股東迴避，採用少數股東多數決，以發揮表決權之功能；事後則賦予異議股東股份收買請求權，使其享有主張事後救濟之權利。 本文意在以英美及香港等發達資本市場之成熟私有化制度為借鑒，梳理前述各制度寬嚴程度及其適用之目的，探究對先進資本市場制度移植的必要性並提出自身淺顯之看法及見解。

Going private transaction originated from American law. Its essence is that the management of listed companies squeeze out the tradable shares held by small and medium-sized shareholders to realize the purpose of delisting listed companies. It is widely used in capital markets such as Hong Kong and Singapore in Asia. In recent years, the number of going private transaction in Taiwan has increased significantly. There are cases of going private transaction involving Chinese Mainland enterprises listed at home and abroad. Combined with the previous revisions of Taiwan's enterprise merger and Acquisition Law, exploring the mechanism of going private transaction system will help to improve the enterprise merger and acquisition system. The path of going private transaction is usually the management buy-out, that is, the controlling shareholders, actual controllers, directors and other management members of the listed company or their related parties obtain the shares held by minority shareholders as the acquirer. The essence of this transaction is the game between the management and minority shareholders. However, since the management level can control the time point when the transaction is launched, the transaction scheme and other information, as well as the subsequent arrangement of the transaction, the bargaining power of both parties in this transaction is very different, resulting in information asymmetry. In order to balance the interests of the management and the central shareholders, the privatization system aims to enable the central shareholders to obtain their due interests. Considering the legal system of developed capital markets, the way to protect minority shareholders is to standardize the procedures of MBO. Using the transaction process as an index, a special committee is established in advance or required to fully disclose information including conflicts of interest; In the process, the threshold for passing resolutions of the shareholders' meeting and the withdrawal of shareholders with conflicts of interest shall be controlled, and the majority resolution of minority shareholders shall be adopted to give full play to the function of voting rights; Afterwards, the dissenting shareholders are entitled to claim for share purchase, so that they have the right to claim relief afterwards. This paper aims to use the mature privatization systems of developed capital markets such as the United States and Hong Kong for reference, sort out the degree of leniency and strictness of the above-mentioned systems and the purpose of their application, explore the necessity of transplanting advanced capital market systems, and put forward their own simple views and opinions.