閉鎖性公司少數股東之保護

Abstract

就閉鎖性公司之少數股東而言，一方面由於無次級流通市場存在，其股份轉讓每有現實上之困難，而無法輕易收回投資；另一方面，因其持股數較少，並無公司經營之主導權，一旦受控制股東之壓迫，依我國傳統之股份有限公司法制，是否能充分確保其權益，則為亟待研究之課題。又鑑於萬國法律基金會版「公司法全盤修正草案」，已擬參考美國及日本等國之閉鎖性公司法制，就我國公司法上之股份有限公司引進閉鎖性公司法制，因此探討美、日等國有關閉鎖性公司法制在實際運作上所發生之重要問題，則為不容忽視之研究主題。此外，我國於二○○二年二月六日所公布施行之企業併購法，雖已引進表決權拘束契約或股東書面協議等制度，但並未就少數股東之保護問題一併處理，為促進我國閉鎖性公司法制能有良性發展，實有深入探討之必要性。\\r本文除探討閉鎖性公司法制之基本概念外，將以閉鎖性公司少數股東之保護為研究重點，整理分析美國及日本等國之相關立法例及司法實務見解，作為我國建構及推動閉鎖性公司法制之參考。此外，亦擬針對萬國法律基金會版「公司法全盤修正草案」及企業併購法有關閉鎖性公司法制之相關規定，從解釋論及立法論之觀點，予以整理分析，期能有助於掌握閉鎖性公司法制之發展動向。

According to the traditional company legal system, whether the rights of a closely held corporation’s minority shareholders can be protected once they are encroached upon by the majority is a timely issue due to the lack of a public market for such shares and the de facto difficulty of share transferring. Another issue is that minority shareholders cannot fully carry on the management because of their minority shares ownership. Many systems are governed by the Merger and Acquisition Law such as the contract between shareholders, the contract between shareholders and the corporation, the limitation of the transfer of shares and setting the pledge, but in fact this is a variation of the rule of the Merger and Acquisition legal system. At the same time, the shareholders’ investment recovery or protection system have not been built up. The bill “The amendment of the Company Law” held by the CEPD, Taiwan, also refers to the closely held corporation legal system from the US and Japan and introduces an amendment in the chapter of “The Limited Liability Company” to increase the flexibility of company organization under Company Law. Nevertheless, the most controversial issue in the development of the US and Japan’s closely held corporation legal system focuses on the means of protecting minority shareholders (sometimes referred to as non-controlling shareholders). The litigation and the holdings from these countries, collected and arranged, would be helpful for the promotion of the closely held corporation law. Besides the basic concept of the closely held corporation legal system, the protection of the rights of minority shareholders is also a subject of emphasis in this study. The litigation and the holdings of US and Japan will be collected and analyzed as a reference in order to build up and promote the closely held corporation legal system. Furthermore, in terms of explanation and litigation, the relative rules of “The Proposal on the Amendment of the Company Law” held by the CEPD and the Merger and Acquisition Law will be analyzed to advance the legal system of closely held corporations in the R.O.C.