公司解散清算之研究—以資產充實與有效終結為中心

Abstract

公司身為法人，無壽命限制，但其存在總有終點。不論是股東投資獲利了結或是經營不善欲停止虧損，公司都將面臨消滅。解散清算程序是公司法人格消滅前最後一個階段，目的在於妥善分配公司財產，釐清公司權利義務，對股東、利害關係人或是公共利益均有其重要性。不過觀察實務運作，公司解散清算完結狀況不佳，數以萬計清算中公司成為無實質活動，徒留法人格空殼之「殭屍公司」。 清算無法落實的重點之一在於資產不夠充實，現行法下董事有極高的誘因在公司面臨財務困難時，將用以清償債務之責任財產孤注一擲，謀求翻身機會，但若失敗則公司再無資產，侵害債權人受清償之利益。解散後，清算中公司資產過少，清算人與股東亦無誘因進行清算程序。再者，我國解散清算程序之設計以公司具清償能力為前提，故由股東與董事主導清算程序，對債權人之保障亦不夠周延。公司在解散前面臨資產流失之威脅，解散後又適用與實際情形不契合之法制設計，我國解散清算不確實之現狀可想而知。 本文參考英美法制，探討解散前與解散後可能的制度設計。在解散前，我國於民國90年引進之忠實義務可以發揮效果，英美法於公司陷入財務困難時，敦促董事更加考量債權人利益並保全公司資產。惟在我國實務與學說上似較缺乏相關討論，而低估了忠實義務在此議題上的重要性。在公司解散後，我國應翻轉現行法制設計，建立以支付不能為前提，由債權人主導之解散清算制度，可參考英國公司清算各種制度設計，使解散清算制度更貼近實務需求。另外，清算人為程序中最重要的角色，但現行制度下法定清算人造成之弊端大於利益，可參考英國清算執業者制度，加強清算人公正、獨立、專業之性質。

As a legal person, company has no life limitation, but it will terminate at certain moment. The termination of a company happens when shareholders get enough profit from their investment or endure too much lost to continue the business. Liquidation, or winding up, is the last stage before the end of company’s legal personality. The goal of the procedure is fair distribution of assets and clarification of company’s rights and liability. It is critical for shareholders, stakeholders and public interest to liquidate a company smoothly. But in practice, the liquidation procedures are not well implemented, tens of thousands of defunct companies with redundant legal personality are left on the market. One of the reasons causing the situation is the shortage of assets. Under current law, when the company face financial difficulty, directors tend to bet with all remaining assets, which should be distributed to creditors. If the directors failed, there will be no assets left for creditors. And the shortage of assets reduces the motivation of liquidators and shareholders to finish the procedure. Furthermore, the liquidation procedure in Taiwan is designed for solvency companies, so the dominant player of the liquidation are shareholders and directors. There are few protections of creditors in current procedure. Companies are exposed to the risk of assets loss before liquidation, and are forced to apply to a liquidation procedure which is inconsistent to practical situation. The non-implementation of liquidation in practice is not a surprise. This thesis reviewed Anglo-American law, mainly U.S. and U.K. law, on the concerning issues, and tried to figure out possible suggestions for a better procedure for Taiwanese companies. Before the liquidation, fiduciary duty, which was introduced into Taiwanese law in 2001, might play an important role. In Anglo-American law, directors are required to put creditors’ interest into primary position and preserve the assets when the company are in danger of being insolvent. But there are comparatively few discussions about this issue in Taiwan, the importance of fiduciary duty might be underestimated. And this thesis proposed to turn the liquidation into a procedure which is principally for insolvent company and led by creditors. Liquidation in U.K. might be taken as reference for Taiwan to build a procedure which conforms to real situation. Furthermore, liquidators are the most important role in the procedure, but the current statutory liquidator regime has its risks outweigh the benefits. Therefore, this thesis proposed to take U.K. insolvency practitioners framework as reference to improve the integrity, independence and profession of Taiwanese liquidators.