臺灣家族企業公司治理法律風險之控管建議：以大同公司為例

Abstract

臺灣上市櫃公司中性質上屬於家族企業的比例高達七成以上，過去近一世紀以來，這些家族企業是臺灣經濟發展的基石，高瞻遠矚且性格堅毅的第一代企業家帶領家族企業穩定發展，透過集團多角化發展，帶來大量就業機會以及整體社會經濟產業進步。 然而隨著時代變遷，戰後嬰兒潮為主的第一代企業主陸續步下人生舞臺，這些家族企業也面臨傳承以及接班問題，過去這些人治為主、父權至上的第一代創辦人半生著墨經營政商關係，更以為做了足夠的接班規畫，以交叉持股、信託、成立基金會控股公司等方式來平衡集團內血緣家族親人、老臣和專業經理人等各方勢力，企圖維持家族企業內以一定股份即可掌控實際經營權，但隨著創辦人身體出狀況或者離開人世，物是人非之後，往往才是企業組織是否經得起外界檢驗，順利接班、完成傳承發展延續的挑戰不可謂不大，乃至於近二十年來家族企業公司治理及傳承問題層出不窮，包括台塑集團、長榮集團、中信集團乃至於本文探討的大同公司無一倖免，對於臺灣產業之經濟發展已然產生重大影響。 其中，最大的爭議往往在於這些財團家族企業，傳承於二三代之後，常會遇到創始家族控股權減少，子公司、孫公司繁多，經營者以及家族成員身兼多家公司董監事，權責不相符，公庫私帳不分，決策過程利益衝突等眾多問題，在黨政不分威權時期資訊不透明或可支手遮天，但在政黨輪替之後，民主時代政經環境大改變，因循舊習等於將自己曝於極高的法律風險之上，例如大同前負責人林蔚山即因此獲判徒刑，原因即為林蔚山以大同集團資金，填補私人投資通達公司的損失，致使大同公司遭受高達13億餘元，被法院認定背信罪成立，判處8年有期徒刑。 尤有甚之，家族企業以交叉持股、信託以及精神文化控制經營權，實際持股比例相對低的結果，引發外部資本敵意收購甚至發生股權爭奪事件，控股家族使用焦土策略，甚至不惜讓子公司破產與犧牲中小股東的利益以維持控制權，引起軒然大波，也是另一個層次的經營權法律風險，大同事件引發了社會對於家族企業的收購與公司法修訂的呼聲與結果，公司法修訂增加大同條款－第173-1條，降低股東自行召集股東會並罷免董事的門檻，從而能夠讓公司董事會更好地被監督，限制董事會權力。大同條款的提出對於臺灣的控股較少的家族企業有深遠影響。企業的內部人將面臨市場派越來越多的挑戰，並增加了面臨惡意併購的危險。 本論文即透過研究大同公司的負責人因背信交易所涉及的刑責，以及大同公司派在防禦敵意併購所採取的手段，觀察公司在經營階段有那些因為錯失了思考法律預防面的考量，所發生負責人被追究法律責任、甚至整個公司經營權被整碗捧走的結果，本文希望透過論述與研究，探討出如何提供企業經營者在法律風險上有更佳的預防地位，也探討傳統企業內部法務系統或委外事務所之協力，為何無法完全預防傳統企業經營者誤觸法律地雷，探究出可能的原因，並提出可能的解方與策略。 本研究期待提供臺灣家族企業在規劃股權傳承與交易法務實務時的參考依據，這些龐大的家族企業一旦發生紛爭甚至訴訟，除影響家族企業經營者外，對眾多員工和小股東，乃至整體臺灣的經濟發展競爭力都有影響，可說是既深且遠，透過完整的公司治理與預防法律風險，讓好的家族企業建立合法合理的股權結構、交易慣例，為社會創造發揮更多永續經營以及經濟發展的穩定力量。

Over 70% of Taiwan's listed companies are family businesses. And over the past century, these family businesses have been the cornerstone of Taiwan's economic development. First-generation entrepreneurs with foresight and perseverance have led the stable development of family businesses. The group has brought about many employment opportunities and overall social, economic, and industrial progress through diversified development. However, with the changes of the times, the first generation of business owners dominated by post-war baby boomers have passed away one after another. These family businesses are also facing problems of inheritance and succession. In the past, these first-generation founders, who were patriarchal and kin on rule man, spent half their lives managing political and business relations and thought that they had done enough succession planning to balance the power between family relatives, senior managers, and professional managers within the group utilizing cross-shareholding, trusts, and the establishment of foundation holding companies to maintain the actual management rights in the family business by possessing certain shareholding. However, with the founder’s health issues or passing away, it is often the time when the enterprise organization can pass the test of the outside world, smooth succession, succession, development, and continuation challenges are severe. In the past two decades, corporate governance and inheritance problems of family enterprises have emerged proliferately, including Formosa Plastics Group, Evergreen Group, CTBC Group and the Tatung companies discussed in this article all encounter the same issue, without doubt, this issue have had a major impact on the economic development of Taiwan's industries. The most significant controversy often lies in the fact that these consortium family businesses constantly encounter a decrease in the founding family's controlling stake after the business is inherited by two to three generations; operators and family members act as both directors and supervisors of many companies, incompatible of powers and responsibilities, regardless of the public account and private account. Conflicts of interest in the decision-making process, etc. In the era of authoritarianism, information is opaque or can be overshadowed. However, after the rotation of political parties, the political and economic environment changed drastically in the democratic era. Such an act is tantamount to exposing yourself to extremely high legal risks. For example, Wei-shan Lin, the former responsible person of Tatung, was sentenced to imprisonment for this. The reason is that Wei-shan Lin used Tatung Group funds to compensate for the loss of private investment, which caused Tatung Company to take the 1.3 billion loss. As a result, he was found guilty of breach of trust by the court and sentenced to 8 years in prison. Family businesses use cross-shareholdings, trusts, and spiritual culture to control management rights, hence the actual shareholding ratio is relatively low, which may trigger hostile acquisitions by external capital and even equity disputes. The holding family may even make the subsidiary go bankrupt and sacrifice the interests of small shareholders to maintain control, causing great disturbance, is another level of legal risk of management rights. The Tatung incident aroused social attention and resulted in the issue of the acquisition of family businesses and the revision of the Company Law. The revision of the Company Law added the art. 173-1 called Tatung Clause, which lowered the threshold for shareholders to convene a general meeting and remove directors. Accordingly, the board of directors could be more well supervised and, in the meantime, limit board power. The proposal of the Tatung Clause has profoundly impacted family businesses with relatively small holdings in Taiwan. In addition, enterprise insiders will face more and more challenges from the market and increase the risk of hostile mergers and acquisitions. This thesis studies the criminal liability of the responsible person of Tatung Company for breach of trust and the means adopted by the Tatung Company faction against hostile mergers and acquisitions and to observe the company’s failure of lacking legal precautions during the operation stage. As a result, the person in charge was held accountable, and even the management rights of the entire company were taken away.

This article hopes to discuss how to provide business operators with a better preventive position against legal risks and discuss the cooperation of traditional internal legal departments and outsourced firms in enterprises. Sort out why such way cannot prevent traditional business operators from accidentally opening up legal minefields. Explore the possible reasons and propose possible solutions and strategies. This study looks forward to providing references for Taiwanese family businesses when planning equity inheritance and legal transaction practices. Once disputes or even lawsuits occur in these huge family businesses, in addition to affecting the family business operators, it will affect many employees and minor shareholders and even the competitiveness of economic development entire Taiwan, which can be said to be both deep and profound. Through complete corporate governance and the prevention of legal risks, letting good family businesses establish legal and reasonable shareholding structures and trading practices insofar create more sustainable operations and stabilizing force for economic development for society.