不動產投資信託之受益權保障：以治理機制為核心

Abstract

本文透過探求商業信託不同於傳統民事信託的特性與地位，以及不動產投資信託與典型資產證券化商品之差異，釐清不動產投資信託制度之本質。而後將不動產投資信託與相似制度進行比較，發現其雖看似與證券投資信託（共同基金）有相似性，然實際上與共同基金和一般公司，在不同面向上分別有相似與相異處，而應被以一種獨立的商業組織類型看待，對應地衍生其受益權保障需求。於釐清不動產投資信託之受益人之保障需求後，本文透過制度比較與援引過往實證研究，認定不動產投資信託之受益權保障核心在於其治理機制之建立。治理機制可分為內部治理與外部治理二個面向，其設計上須參酌不動產投資信託作為商業信託的功能與組織特性，與其受益權保障需求，並應參酌其他REITs成功發展國家的規範與作法。

在內部治理上，本文區分「經營層面」與「監督層面」進行研究。在「經營層面」，應釐清不動產投資信託法律關係中負擔受託義務的主體與對象，及其義務內涵，並設計相關配套規範。此外，針對集團經營型不動產投資信託，應思考如何設計最適之程序，以兼顧關係人交易所能帶來的經濟效益，與受益人權益之保障。在「監督層面」，宜調整或增設有關信託監察人與受益人權限之規範，並應兼顧主要受益人與少數受益人之權益。而在外部治理上，近期於美國不動產投資信託興起的股東行動主義與併購活動可作為借鏡。檢視我國之相關規範，本文認為我國不動產投資信託應適度加強資訊揭露。而針對我國外部治理機制之變形：「清算危機」，宜透過內、外部治理機制之健全化等途徑進行改善，以保障受益人群體長期之權益。

This paper clarifies the nature of real estate investment trusts (REITs) by exploring the characteristics of commercial trusts which are different from civil trusts, as well as the discrepancy between REITs and typical asset securitization. Then by comparing REITs with other similar business structures, it finds that although REITS resemble securities investment trusts (mutual funds) by appearance, there are both similarities and differences between REITs and general companies, as well as REITs and mutual funds, respectively. Therefore, REITs should be regarded as an independent type of commercial organization, having their distinctive needs in the protection of beneficial rights. After clarifying the specific requirements of beneficiary protections in REITs, this paper, through making comparisons with similar business structures and looking into previous empirical evidence, finds that the core of protecting beneficiary rights of REITs lies in the establishment of governance mechanism. The governance mechanism of REITs can be separated into two parts, internal governance, and external governance. The design of both should take into account the functional and organizational characteristics of REITs as commercial trusts, as well as their distinctive needs in the protection of beneficial rights. Besides, learning from the regulations and practices of other countries having REITs successfully developed is also imperative.

In terms of internal governance, this paper deals with the operation and the internal supervision separately. For the operation of REITs, this paper finds it necessary to first clarify the ones bearing fiduciary duty in the relationship of REITs under the current legal structure, as well as the contents of their fiduciary duty. Then it suggests several supporting regulatory designs. In addition, for externally managed REITs in Asian countries such as Taiwan, it is critical to consider designing the most appropriate procedures for related party transactions, taking into account both the economic benefits they can bring, and the protection of the interests of beneficiaries. As for the internal supervision, this paper considers it advisable to make some adjustments to current regulations with regard to the authority of trust supervisors and beneficiaries, considering the interests of both the major beneficiaries and minority beneficiaries. In respect of external governance, the recent rise of shareholder activism and M&A activities in US REITs may serve as a reference for our discussion. By reviewing the current relevant regulations and practices in Taiwan, this article finds that information disclosure should be appropriately strengthened. Furthermore, in response to the deformed external governance mechanism in Taiwan, the liquidation crisis faced by many REITs, this paper suggests that the long-term interests of beneficiaries should be protected by enhancing internal and external governance.