經營權爭奪個案研究-以公開收購與委託書徵求為例

Abstract

公開收購與委託書徵求為實務上最常見之經營權爭奪方式，公開收購制度源自於歐美，我國則於1988年證券交易法修正時引進此套制度，立法者復授權主管機關訂定「公開收購公開發行公司有價證券管理辦法」加以規範，而該辦法自1995年9月5日訂定至今，短短20年間竟已歷經9次修正，顯見公開收購制度於我國仍處於發展階段，整體案件數目與歐美國家相比仍嫌不足，許多法律上之爭議問題尚有待解決。此外，當目標公司面對非合意收購時董事之責任為何？美國實務所發展出五花八門之防禦措施於我國之可行性如何？防禦措施之實施權屬於股東會或者由董事會決定即可？上開事項之規定仍付之闕如。

至於委託書制度發展至今此制度幾乎與經營權爭奪畫上等號，某些股東藉此能以極少數持股掌控公司，嚴重影響公司內部安定與正常經營，損害大多數股東之權益，且於現行公司法設計下，公司派與市場派對於股東資訊取得之不公平，導致委託書之原始功能將更難以發揮。

綜上，本文藉由日月光公開收購矽品、中石化以及三陽市場派與公司派之爭等個案討論之方式，指出其法律上之爭議所在，並提出諸如加重董事義務、股東名冊原則公開等可能之修正建議，提供未來制定規範時之參考。

Tender offer and proxy solicitation are the most common practice in takeover contest. Tender offer system originated in the west. In 1988 our Securities Exchange Act (SEA) was amended, introducing this system from the west. Later, lawmakers had the authorities promulgate ”Regulations Governing Public Tender Offers for Securities of Public Companies” to regulate this system. Since the above mentioned regulations was set on Sept 5, 1995, it had been amended 9 times in just 20 years, which proves that our tender offer system is still on development stage, and overall caseload is inadequate compared to the west.Therefore, many related law issues need to be solved. Furthermore, when it comes to unsolicited tender offer (hostile takeover), what kinds of responsibility and liability should the directors of target company take for? Can those various offense measures developed by US companies be applied in domestic case? Should the right to execute offense measures belong to shareholders’ meeting or just to board of directors? The regulations concerning all above matters are still in lack.

As for proxy system, it has decoupled from the original purpose and turned into a tactic in takeover contest. By means of proxy solicitation, some shareholders can control a company even though their actual holdings are just a few, which might deeply impact internal stability and normal operation in a company and damage the majority of shareholders. Moreover, under the current Company Act, the unbalance in information gathering between company side and market side makes proxy system harder to function originally.

All in all, the aim of this paper is to point out related law issues through 3 cases discussion (tender offer by ASE Group to SPIL; the battles between company side & market side within CPDC and SYM) and raise several possible amending suggestions, such as to heighten liability of directors, to publish the register of shareholders and so on, which hopefully could be adopted as reference in planning regulations.