我國公開發行公司關係人交易法制之研究

Abstract

2022年1月28日金融監督管理委員會修訂公開發行公司取得或處分資產處理準則15條5項，是未來公開發行公司進行交易金額達公司總資產額10%以上之重大關係人資產交易時，均須經由股東會決議。此次修法顯見主管機關認為即使我國現行法對關係人交易的管制從事前到事後已可謂滴水不漏，且於近年世界銀行經商環境相關評比中也取得好成績，然關係人交易制度仍未臻至完善而須修法改善之。對此，本文試圖藉由金管會此次修法機會，對我國現行公發公司關係人交易制度進行較為全面性地檢討，以釐清關係人交易制度應有態樣、我國修法方向是否正確以及現行制度是否仍有不足之處而應一併檢討。 在比較我國與美國、新加坡之關係人交易制度，以及針對我國包含勤美案在內之數個關係人交易進行分析後可知：關係人交易兼具利益衝突交易與效率交易的雙面刃特質，讓各國制度均須靈活運用程序面管制手段、實質面管制手段與資訊揭露以求衡平其交易風險與利益，同時，完美無缺的關係人交易制度並不存在，各國制度均有其優缺點，並無孰優孰劣。而從我國關係人交易行為人多為兼具控制股東身分之董事與經理人可知，金管會此次修法可謂對症下藥，可更有效箝制控制股東濫用關係人交易謀取私益。不過，除此之外，我國制度上仍存在許多規範面與執行面的問題有待解決。在規範面，除有程序規範不足的情形外，對於如證交法171條1項2、3款非常規交易罪與特別背信罪等刑事責任規範疊床架屋的情形亦有待修法解決。在執行面，無論是證交法171條1項2款之「不合營業常規」應如何解釋以及如何與公司法369-4條調和，或是非常規交易罪與特別背信罪等刑事責任與忠實義務違反民事責任成立之關聯性問題，還是程序規範遵循的重要性，都是我國關係人交易制度在執行時須重視的問題。是以，2022年金管會修法僅可謂我國公發公司關係人交易制度修訂之起點，絕非終點。

How to regulate related party transactions (RPTs) is always an important issue in corporate governance. On January 28, 2022, the Financial Supervisory Commission (FSC) amended Paragraph 5 of Article 15 of the Regulations Governing the Acquisition and Disposal of Assets by Public Companies (the Regulations), which made the regulation for RPTs stricter since the material RPTs of assets of public companies must be approved by the disinterested shareholder meeting after this amendment. It shows that FSC believes that the existing laws for RPTs still leave room for improvement, even though our laws for RPTs ranked 21st in 190 economics in the Doing Business Report 2020. Owing to this confusing fact, three questions are raised in this thesis: 1. What do perfect RPTs laws look like? 2. Can this amendment to the Regulations help regulate RPTs? 3. Do our laws for RPTs still have room for improvement? To answer the first question, a perfect way to regulate RPTs does not exist, however. Most countries use the same tools to screen RPTs: untainted agents’ or principals’ approval (approval of disinterested board or shareholder meeting), court’s review, and mandatory disclosure. Every jurisdiction uses these tools altogether to balance the risk of conflict of interest and the interest that RPTs, which are both conflict of interest transactions and efficient transactions, may bring, which is to maximize the amount of the efficient RPTs and minimize the inefficient ones. After comparing the laws for RPTs in Taiwan, the United States, and Singapore, we can realize that every regulation for RPTs in different countries has its pros and cons, so we cannot simply tell which one is better. To answer the second question, after several case studies of RPTs in Taiwan, including the CMP Group case, it is clear that this amendment of the Regulations does help regulate RPTs. Most RPTs in Taiwan are transactions between the company and its director or manager who is also a controlling shareholder of the company. Thus, the approval of disinterested shareholder meeting is an effective tool to screen the inefficient RPTs in Taiwan. The fact that FSC amended the Regulations in 2022 is a good starting point to improve the laws for RPTs. As to the third question, though this amendment of the Regulations in 2022 improves the laws for RPTs in Taiwan, there is still more room for improvement. Viewing the rules regarding RPTs in the Company Act and the Securities and Exchange Act and its accompanying regulations, we can see that the procedure for transactions between directors is too complex, while the one between managers is too simple. Criminal liability is also unclear when violating specific rules. For example, when tunneling via RPTs happens in a public company, it is confusing that Subsection 2 or 3 of Paragraph 1 of Article 171 of the Securities and Exchange Act is being violated and that the sentence is according to which Article. When it comes to the court’s review, it is also confusing how to explain “causes the company to conduct transactions not in the normal course of operation”. Not to mention that the special connection between criminal liability and civil liability and the importance of complying with the rules of procedure are both important when the court reviews a RPT. Law amending can solve most of the problems mentioned above, such as the procedure problem. While some of the problems must be solved in other ways. For instance, the explanation of “causes the company to conduct transactions not in the normal course of operation” should be “whether the two parties negotiate on the basis of fairness”. The amendment of the Regulations is a great starting point to improve the laws for RPTs. However, it is not the end. Once these problems mentioned above are fixed, the laws for RPTs in Taiwan will become even better.