| 中文摘要 |
相互參照公司法及企業併購法之規定,「讓與全部或主要部分之營業或財產」首先引發對價種類的問題。企併法既已揭示股份為對價選項之一,則此種併購型態與合併、分割及概括承受間之區別何在,便應釐清。同時,在不同對價之選擇下,反對股東是否必須享有股份收買請求權之退場機制亦有檢討之必要。由於公司組織基本變動的決定機關為股東會,股東會決議如未遵守特別決議之要求,法院實務在其效力之認定上即有爭議。而「讓與全部或主要部分之營業或財產」亦涉及公司內部權限劃分的議題。長期以來,有關股東會議程之設定其實十分鬆散。臨時動議除不可碰觸特定事項外,似乎皆可提出討論並做成決議,無疑為股東資訊權保障之一大斲傷。公司法於民國九十四年修正,引進股東提案權,正提供了一併檢視上述問題的絕佳機會。 |
| 英文摘要 |
In Taiwan, the sale of all or a substantial part of a firm's assets or the business itself is regulated by both the Company Law and the Business Mergers and Acquisitions Law. When these two laws are cross referenced, the issue of consideration surfaces. The Company Law does not address the issue of consideration while the Business Mergers and Acquisitions Law emphasizes the role played by stock as one of the possible considerations in the acquisition of such assets or a business. This paper draws on the differences among the sale of all or a substantial part of the assets/business, a merger and a division, as well as the general assumptions regarding the rights and obligations of the different parties involved. The remedies offered to dissenting shareholders, commonly known as appraisal rights, should be revisited simultaneously. The difficulties faced by the courts also include the validity of the resolution passed by the general meeting if the conditions for the requisite quorum or the method of resolution are not met. This problem also reveals the importance of the theory of parity, i.e., the demarcation of powers between the general meeting and the board of directors. However, these issues are not attracting the attention of the legislature. The agenda of the general meeting is often loose, and shareholders are to a certain extent deprived of the right to information. The paper argues that when combined with the topic of the sale of the assets or the business, the theory of parity and the interests of shareholders should be simultaneously taken into account. |
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