非合意收購法制芻議

On Regulating Unsolicited Takeover

以日月光對矽品的兩次公開收購為素材，本文探索非合意收購中的三個問題：收購提案決定權的配置、防禦措施的充實及審查機制的建立。本文分析後認為，我國公司法在 2001 年修正第 202 條後，併同第 23 條受託義務的明文，已賦予董事應維護股東利益之實證法基礎，認為我國目標公司董事具有非合意收購提案權的決策權限，應與我國既有規定相符，且有一定正當性。然以我國目前常見的防禦措施而言，並不具備有效的防禦措施所須具備之迅速、有效、對既有股東衝擊小等特性，而有不足，而可思考如何賦予目標公司類似於毒藥丸之防禦手段。另一方面，若賦予董事有防禦非合意收購的權限及手段，後續將產生董事可能為自身權位而抗拒非合意收購的疑慮，而有需要建立相應之審查機制。對此，比較法上雖有分別採用委員會及法院做為審查主體的設計，然就我國法制而言，建立以法院為中心之審查體系，毋寧與現有規定較為契合，應屬較為經濟迅速的做法。因此，我國目前法制對於非合意收購，其實已有若干條文可資為據，所欠缺者，毋寧為該等規定如何應用於非合意收購中之共識。然解釋論仍有其窮，對於現有防禦措施不足以及目標公司訴權，乃至於既有機制的強化（如商業法庭之設立等），則仍有待立法以畢其功。

By observing the two tender offers initiated by ASE Group for SPIL, this article explores three questions in the unsolicited takeover (or hostile takeover) context: the allocation of authority between the directors and shareholders, the availability of defensive measures under current regime and the establishment of scrutiny mechanism. After the Company Act revised Article 202, along with the insertion of fiduciary in Article 23 in 2001, the board of a Taiwan company should have obtained the necessary legal base to actively protect the shareholders’ interest. Therefore, it should be justifiable to argue that the board of a target company is authorized to have a say in the event of an unsolicited takeover. However, currently commonly used defensive measures in Taiwan does not have all the characteristics required for a plausible defensive measure: quick, effective and minimum negative impact on current shareholders. Thus it is an issue under current law with respect to the design of takeover measures, which is the second topic of this article. On the other hand, when the board is provided with the necessary authority and measures in response to defensive measures, it is inevitable to have the concern that the board may abusively use them for entrenchment purpose and thus corresponding scrutiny is desirable. Although, from the comparative perspective, two options are available in this context, i.e. the committee or the court, considering current architecture of Taiwan legal system, this article argues that the court should be the proper choice to police the inappropriate adoption of defensive measures. Therefore, current legal provisions have provided some of the bases for the regulation of unsolicited takeovers. What is lacking is rather the consensus of those provisions’ application in the unsolicited takeover context. However, with respect to the improvement of the defensive measures available and the standing for the takeover company to sue, those are the issues that could not be solved by interpretation of current provisions rather by introducing new laws or regulations.