我國新修正公開發行公司出席股東會使用委託書規則之評析

Review over the Recently Amended Regulations Governing the Use of Proxies for Attendance at Shareholder Meetings of Public Companies in Taiwan

股東會為公司最高意思決定機關，然現實上因公司規模擴大，股權分散，令現今股東會轉化為徵求委託書的過程，亂象紛呈，故有需要對股東使用委託書給予適當規範，但規範之制定應符合訊息公開、公平競爭以及誠實信用等原則。金管會對於委託書規則之制定向來採嚴格監理的態度。在委託書規則修正前，學界已批評徵求人持股門檻過高，豈料新修正委託書規則再提高門檻，其中對金融機構無限徵求規定最為嚴格。本文以為此修改似違股東行動主義；且區分金融機構與非金融機構為不同規定似亦缺乏合理基礎，就比較法之角度而言亦有再研議之空間。為此，本文將由委託書制度之起源利弊，法律對徵求委託書之限制，比較法觀點，評析新修正委託書規則並提出部分建議。 The shareholder meeting has the upmost power that makes decisions for a company. However, as a company grows on its scale, shares often disperse, turning share holders' meetings nowadays into competitions to solicit proxies for attendance at shareholder meetings. To prevent chaotic situations that come with, the use of proxies need to be regulated. The regulation shall comply with the doctrine of freedom of information, fair competition, and good faith. Financial Supervisory Commission has always had a stringent supervising front towards the regulation of soliciting proxies. There had been plenty critics, from the academic circle, that the threshold for solicitors' shares is too high. Much to everyone's surprise, the threshold is raised to even higher with the amendment of Regulations Governing the Use of Proxies for Attendance at Shareholder Meetings of Public. The threshold for financial institution to solicit unlimited amount of proxies are especially stringent. This article finds that this amendment might contradict with shareholder activism. Moreover, there seems to lack a legitimate ground for treating financial institution differently from the non-financial institution. More could be thought over from the point of view of comparative law. Therefore, this article reviews the recent amendment, taking into account the fountainhead, the pros and cons and the restrictions on the proxies in light of comparative law and provides some suggestions.