企業併購商品責任之歸屬——以資產收購者之繼受商品責任為探討中心

Abstract

當企業從事設計、生產、製造商品，或從事相關經銷、輸入等之經營時，因瑕疵商品，致生損害於消費者或第三人時，依消費者保護法，該消費者或第三人得請求其負商品責任，惟若相關企業併購後經營權已變更，後繼公司是否應繼受先前公司之商品責任，依我國公司法理論，應視企業併購的法律效果而定，以合併進行企業併購，後繼公司應繼受先前公司之商品責任，惟資產收購之法律效果，收購公司無須承受賣方公司之商品責任。但嚴格適用公司法理論，可能阻礙消費者獲得損害賠償的適當救濟，因此本文藉由美國相關案例之探討，瞭解其對企業併購後歸屬產品責任的相關規範，希冀在公司法理論與商品侵權理論間尋求平衡，提供我國未來於相關消費者保護法修法之參考。

The issue of whether a successor corporation may be held liable for injuries caused by a defective product sold by its predecessor corpo-ration generally has been decided by applying corporate law which fo-cuses on the type of corporate acquisition between the predecessor and successor. Under corporate law principles in Taiwan, if the nature of the transaction between the successor and the predecessor corporation is a purchase of assets, rather than a merger or stock purchase, the successor is not held liable for its predecessor’s defective products. The question arises, however, that an injured consumer might have no recovery if the predecessor corporation has dissolved, unless the plaintiff may recover from the successor corporation. Thus, the traditional corporate law con-cerning transaction of a purchase of assets presents an obstacle for the products liability plaintiff seeking compensation for his or her injuries. American courts realize that this tension exists between corporate law and products liability plaintiffs, and thus some courts have created new rules to enable the plaintiff to recover. Under American traditional corporate law, there are well-established exceptions where the successor is held liable for its prede-cessor’s defective products when a corporation purchases the assets of another: (1)The successor’s acquisition is accompanied by an agreement for the successor to assume such liability of the predecessor; (2)The acquisition results from a fraudulent conveyance to escape liability for the debts or liabilities of the predecessor; (3)The acquisition constitutes a de facto merger with the predeces-sor; or (4)The acquisition results in the successor becoming a mere con-tinuation of the predecessor. This article will first study and discuss the four traditional corpo-rate law exceptions aforementioned and three additional nontraditional exceptions, including the continuity of enterprise theory, the product line theory, and an independent duty to warn theory as applied to justify successor liability for defective products when a corporation purchases the assets of another. This article will further demonstrate the need for some products liability exceptions to the general rule of successor non-liability in Taiwan. Finally, this article proposes for amendments to the Taiwan Consumer Protection Act as to determine the issue of whether a successor corporation should be held strictly liable for its predecessor’s strict products liability in torts. It is recommended that such amendments should adopt both the “four traditional corporate law exceptions” and the “an independent duty to warn doctrine” when presented with an issue of successor liability in assets acquisitions with respect to products liability.