減資法制之研究—以股東及債權人保護面向為觀察

Abstract

近二十年來減資在我國企業間蔚為流行，受財金界高度關注的同時，也引發諸多不當利用減資制度的疑慮，然而我國公司法對減資著墨甚少，不僅對新興之利用減資侵害少數股東權爭議束手無策，繼受歐陸法系之資本制度的債權人保護機能也備受挑戰。對此，我國股份有限公司的減資制度有重新檢討之必要，因此，本文旨在針對現行減資法制對股東保護及債權人保護之不足，分析討論並提出修正建議。 本文從減資的股東保護及債權人保護兩大面向切入，透過比較法之研究，借鏡英國公司法、美國公司法與美國法院實務，分析近年引起高度關注的極端減資爭議，以及債權人保護模式擇定之問題。研究結果認為，以減少股份數額方法減資將對股東造成股權稀釋、股東地位喪失之不利影響，應透過股東會特別決議加強對股東的保護，此外，極端減資爭議之本質為逐出少數股東交易，應在減資規定之外，由我國法院建構股東平等原則的審查流程，並增設以公平價值收購畸零股之相關規定。實質減資導致公司資產流向股東，因此提升債權人無法受償之風險，傳統資本三原則以「資本」為公司財產分派的限制已背離經濟實質，應著眼於「資產」的維持，手段上並應引入償債能力模式以提供債權人適當、有效的保護。

In the past two decades, reduction of capital has become prevalent among enterprises in Taiwan. While it has attracted significant attention among the financial field, it has also raised concerns about the improper use of the reduction of capital. However, Company Law has paid little attention to the capital reduction regime, leaving it powerless to address emerging disputes over infringements on minority shareholder rights caused by the misuse of reduction of capital, and facing challenges to creditor protection inherited from the European legal capital doctrine. Therefore, this thesis aims to reexamine the current law of reduction of capital analyze its shortcomings in terms of shareholder protection and creditor protection, while providing proposed amendments. This thesis approaches the issues from the two major aspects of shareholder protection and creditor protection in the reduction of capital. It analyzes the disputes of extremely reducing of share capital and the mode of creditor protection through a comparative study of the U.K. Companies Act, the U.S. corporate laws, as well as the practices of American courts. The research findings suggest that reducing share capital through a reduction in the number of shares will adversely effects shareholders in terms of dilution of shareholdings and loss of shareholders status. It is recommended to strengthen the protection of shareholders through special resolutions at shareholders' meetings. Furthermore, the nature of extremely reducing of share capital lies in the freeze-out of minority shareholders. In addition to the provisions on reduction of capital, the courts should establish an examination process based on equitable treatment of shareholders. It also introduce relevant provisions on the acquisition of fractional shares at fair value. The return of paid-in capital results in the flow of company assets to shareholders, thereby increasing the risk of insolvency. The traditional three legal capital doctrines, which restricts the distribution of corporate property by “capital”, have deviated from economic substance and should now focus on the maintenance of “assets”. It is also necessary to introduce the solvency test as a means to provide creditors with appropriate and effective protection.