公司內部人自己交易的控制

Abstract

公司內部人不當的自己交易為公開公司最嚴重的代理問題。法律規範自己交易有採用公平法則，有採用利益迴避法則者，各有其效益及成本，公平法則有高昂的訴訟成本；而利益迴避法則有高昂的協商成本。協商成本及訴訟成本的高低，又受到司法制度及其他市場條件的影響。如果司法制度非常有效率，即使採用公平法則，訴訟成本也很低。但如果法院審判效率低，訴訟成本就很高。實務上，我國公司內部人不當的自己交易情形嚴重，仔細檢示，公司法相關規定的適用顯然是一種寬鬆的公平法則。衡量我國目前法院的負荷，採用公平法則，訴訟成本必然很高。因此，利益迴避法則應該才是真正符合我國目前社經及司法條件的法制。

Corporate insiders may severely expropriate outside investors through self-dealing. The failure of controlling self-dealing undermines the confidence of outside investors in the stock market. Consequently, all outside investors exit the capital market and the stock market collapses. Corporate self-dealing may be controlled either by law or by market forces. Theoretically, a perfectly efficient market may provide a correct price reflecting the real value of securities offered by different corporations with or without the expropriation of outside investors. In reality, however, the market is not sufficiently efficient to accurately price different securities. As a result, legal rules are necessarily provided to control corporate self-dealing. Two rules may be considered for the control of self-dealing. A fairness test requires interested-insiders to demonstrate that the transaction is fair to the corporation. The other possible solution is the majority of the minority rule that excludes interested-insiders to vote. A fairness test may be applied efficiently only if a competent court possessing the necessary level of expertise exists. Whenever outside investors claim a transaction to be unfair to a corporation the judge should explore the facts promptly and make a precise evaluation. In other words, a court equipped with expertise of the sophisticated business world is essential to the success of this solution. Whether the fairness test or a majority of the minority rule is efficient depends on the legal and institutional conditions of a particular jurisdiction. Where the court is competent and trustworthy, the application of the fairness test can remove the risk of strategic voting. Where the court is incompetent and overburdened, the fairness test can result in chaos due to the court’s potential misjudgment of an efficient transaction to be an inefficient one and vice versa. As a result, a majority of the minority rule provides a more efficient protection for outside investors in this situation. In Taiwan, corporate law provides a lenient form of the fairness test whereby interested insiders may choose to apply the fairness test to a transaction when they vote in favor of it or choose to apply the majority of the minority rule when they decline themselves from voting. This eccentric design gives rise to inadequate protection of outside investors. Given that the court suffers from an overburdened caseload and lacks experience in complicated corporate issues the adoption of a majority of the minority rule may be preferable at current stages.