論現金逐出合併中股份收買請求權之主體範圍

Abstract

2018年11月，大法官作成第770號解釋，探討者即為近期企業併購下很受關注之－管理階層收購之現金逐出案。然而，外界普遍認為該號解釋並不完足，尚存諸多層面需加以判斷。畢竟，企業間合併往往涉及巨大之利益流動，若不嚴實把關，恐將葬送小股東之基本權。而本文尤其認為企業併購法第12條1項2款，僅准許異議股東行使股份收買請求權之規範，等同於迫使小股東於表決權及股份收買請求權間二擇一，顯然將嚴重侵害少數股東之權益。因此，現金逐出制度下之股份收買請求權主體有擴大至全體少數股東之必要。 本論文分為六章，第一章緒論，闡述本論文之研究動機與目的、研究方法與論文架構。第二章從司法院釋字第770號解釋看股份收買請求權，就釋字第770號解釋作簡要之背景事實介紹，並納入大法官之協同及不同意見書整理，再對現金逐出中可能產生之其餘問題作剖析，以提出股份收買請求權主體擴張之論點。第三章企業併購法股份收買請求權制度之現狀分析－以法律經濟分析為中心，主要著重於現行制度之數據統計及賽局理論之適用。就股份收買請求權之案件量做統計、分析，再佐以囚徒困境、曲同選擇賽局等案例，勾勒出不同情境下少數股東之選擇。第四章美國及日本之現金逐出合併與股份收買請求權制度，以美國法及日本法作討論。介紹此兩國現金逐出之發展歷程，再提出現行法體制下之現金逐出結構，以便與我國法比較。第五章現金逐出少數股東收買請求權之主體擴張。先提出三種改革方案，並採取方案一，即「請求公司按當時公平價格收買時點」，並納入配套措施。又對改革後可能產生之股東結構變化做線性分析，以明確瞭解該項制度將對我國併購市場產生何影響。第六章結論與展望，就現金逐出股份收買請求權可能衍生之相關議題，提出綜合結論與建議。

On November 30, 2018, Taiwan’s Justices gave an interpretation for the doubts over the cash out in the case of Taiwan Fixed Network Co., Ltd. The case was that the minority shareholders who had originally held shares in the company did not agree with the merger, and their shares were forcibly cashed out after the merger was passed. In the end, the Justices pointed out that company shares held by people have certain property value and also fall within the scope of property rights protection under Article 15 of Taiwan’s Constitution, based only on the positioning of shares . The case had been submitted to the Justices for interpretation in March 2014 after the petitioner had sought relief through all courts of appeals. It was not until 2018 that the interpretation was provided, which also revealed the gaps in management acquisition and cash out in Taiwan’s legislation on corporate acquisition. This exposes a problem which is merger between enterprises involves transfer of huge benefits and cash flow; if not controlled strictly, the rights and interests of minority shareholders may be destroyed in the fast-paced merger and acquisition market. And statistics show that the price controlling shareholders or management cash out minority shareholders often cannot reflect the real value of the target company. This case, as interpreted in Judicial Yuan Interpretation No. 770, is a two-tier tender offer dominated by the controlling shareholders. In the first tier, the controlling shareholders first carried out public acquisition of the target company. After obtaining a very high proportion of shares in the acquired company, the second-tier tender offer was to be carried out. A cash out merger was adopted in the second-tier tender offer in the case of Taiwan Fixed Network Co., Ltd., i.e. the minority shareholders were forced out after being given cash as consideration for the merger, and the target company was delisted from the public market. Therefore, the drawbacks mentioned above were fully exposed in this case. Although relief for individual cases is hardly possible because of insufficient information provided at the time of the merger, for the part that ensures price fairness, the current merger and acquisition law can provide relief by way of shareholders’ active request to purchase shares. However, under Article 12 of Taiwan’s Enterprise Merger and Acquisition Law, the provision on requesting the court to determine a fair price when a stock price agreement fails only applies to cases where shareholders voluntarily request purchase of shares. It is not applicable to shareholders who are “unwilling to sell” and have been cashed out. In other words, the current law only provides dissenting shareholders the appraisal rights, which is unreasonable. As a result, this paper suggest that all minority shareholders should have the appraisal rights to claim for fair price when being cashed out.