金融機構股東監理法制：以控制能力為中心

Abstract

本文聚焦於具控制能力之金融機構股東監理法制，鑑於金融機構本身具有公司治理特殊性及高度監理性，故其控制股東亦受主管機關高度監理，以防免金融機構受不適格者所控制。本文將金融機構控制股東監理法制分類為兩大部分討論：控制能力之形成與審查及控制能力之運作及監管。

我國於金融機構股東之控制能力形成前應通過股東適格審查，如：股東資格及資金來源審查，違者將受主管機關命其處分持股及限制表決權限制。由於前述機制違反效果嚴重，實務上有計劃持股者因此卻步，然亦有為刻意規避審查門檻者，審查機制之運用及審查門檻等監理方針實宜彈性因應實務情況而滾動調整。

有關金融機構股東之控制能力之運作及監管，本文以近年數件控制股東不當干預公司經營事例之評論作為通盤分析開端，主管機關之處分焦點似已漸漸從公司及經營階層擴展至控制股東。復經爬梳金融機構公司治理守則之修法沿革，並研析民國112年之金融控股公司法與銀行法修法草案，似可見主管機關預計對控制股東採更嚴密的監理模式。

惟監理密度提高之同時仍應慮及監理手段妥適性以及正當性，回顧我國現行股東適格審查機制及主管機關於實務案例中所用之裁處標準及手段，本文認為應通盤考量我國實務運作情形及不當行為態樣，再施以相對應之處分手段如下述，以有效達到監理目的。經剖析我國實務上控制股東不當干預公司決策之問題，主要根源於董事之不當經營行為，復從我國法人董事制度切入思考，本文提議建構金融機構董事失格制度，並將失格主體擴及失格董事所控制法人，俾遏止控制股東不當介入公司經營情事，強化金融監理機制。

This thesis focuses on the regulatory regime for controlling shareholders of financial institutions. Given the unique corporate governance and the strict supervision of the financial institutions, the controlling shareholders of financial institutions are tightly regulated by the governmental authorities so as to prevent such institutions from being controlled by unqualified shareholders. Under the thesis, the analysis of the regulatory regime for controlling shareholders of financial institutions is mainly divided into two sections: the qualification review of the controlling shareholders and the supervision over the use of the control of the controlling shareholders.

In Taiwan, it is required to obtain the prior approval of the governmental authorities for acquiring a certain percentage of shares of financial institutions. The items to be reviewed by the authorities include the qualification of the shareholder and the source of funds. Violations against the aforesaid relevant laws and regulations will lead to an order to transfer certain shares and restrictions on the voting rights. The aforesaid severe penalties have kept some investors from acquiring the shares of financial institutions in excess of certain percentage; meanwhile, some investors have intentionally built the shareholding structure to circumvent the rules. In this connection, the review mechanism and relevant thresholds should be amended on a rolling basis in response to the social development.

With regard to the control exercised by the financial institution controlling shareholders and the authority’s supervision thereof, this thesis first summarizes and comments on current cases related to controlling shareholders’ undue interference in corporate operation of financial institutions and then presumes that the prime target of the authority has gradually expanded from the financial institutions and their management to the controlling shareholders thereof. Furthermore, based on the research of the legislative history of corporate governance best-practice principles for financial institutions and the analysis of draft amendments to the Financial Holding Company Act and the Banking Act released in 2023, it is predictable that the competent authority aims to develop a more stringent supervisory regime for controlling shareholders.

The appropriateness and legitimacy of supervisory approaches should always be maintained in chase of the increase in supervisory intensity. After conducting a broad set of analysis of the existing shareholder review mechanism and the standards and approaches adopted by the competent authority in the rulings of practical cases, in order to properly fulfil the regulatory purpose, the thesis proposes the following effective solutions to said issues of controlling shareholders after the comprehensive evaluation of actual circumstances and types of misconducts in Taiwan. Considering that the undue interference of controlling shareholders in corporate governance mainly arises from the improper business conducts of directors and the unique legal person director mechanism, the thesis concludes with the establishment of director disqualification mechanism for financial institutions with applying said disqualification mechanism to the legal person directors controlled by the disqualified director. In this regard, said reforms will deter controlling shareholders from unduly interfering in the corporate operation as well as strengthen the financial supervisory regime.