2019年公司法與證券交易法發展回顧

Developments in the Law in 2019: Corporate Law and Securities Exchange Act

公司法甫於2018年底大幅修正，該次修法特色之一，係強化有限公司之資合色彩，以及鬆綁對非公開發行公司之管制。而主管機關在2019年所作之一則函釋中，將限制股份有限公司章程自治之見解，直接適用到有限公司，企圖加深有限公司股份有限公司化之色彩。在此趨勢下，有限公司法制、非公開發行公司法制與閉鎖性股份有限公司法制三者間之界線愈形模糊不清，未來實有必要重新檢視公司法中閉鎖性公司法制，確立其應有之面貌。而公開發行公司法制，除證券交易法在2019年兩次修正中，有部分增修規定外，較為重要的是，證券交易法對公開發行公司提供單軌制此一機關設計選項，但在主管機關強行主導下，2020年1月1日起，所有金融機構及上市櫃公司均應完成審計委員會之設置，單軌制已成不可逆之既定政策，此時，董事會之功能從業務執行機關轉型為監督機關，而公司法實有必要正視董事定位問題，提出相關配套方案。此外，為使商業紛爭在司法程序上迅速、妥適、專業解決，商業事件審理法創新了商業訴訟程序，此等變革能否達此目的，本文以大同案為例，認為未來仍有諸多待解決之課題，其中，實體法之設計即為關鍵課題之一。司法院釋字第770號解釋文中，對企業併購法有關少數股東之資訊取得權及股份收買請求權規定之指摘，在2019年度中，無論司法或立法面向上，均有正面回應，值得肯定，惟從少數股東權益保護之觀點言，企業併購法之相關規範仍有再精進之處。

At the end of 2018, the Taiwan Company Act had just been amended. One of the characteristics of this amendment is to strengthen the capital feature on the rules of limited companies and to deregulate the rules regarding non-public companies. Besides this change, the authorities concerned has declared its interpretation: the restrictions on the articles of incorporation in companies limited by shares are then applied to limited companies. To clarify, this interpretation makes limited companies similar to companies limited by shares. Due to this trend, the differences in the rules of limited companies, non-public companies and close companies in the Taiwan Company Act are more and more vague. It is necessary to review all these rules and to reconsider the stated rules of close corporations in the Taiwan Company Act. Regarding the rules of public companies, there are a few regulations in the Securities and Exchange Act revised in 2019. More importantly, in the Securities and Exchange Act, public companies are offered an option to choose one-tier board instead of two-tier board and the authorites concerned ask that all financial institutions and listed companies adopt one-tier board before January 1st , 2020. This means the function of the board would change from an executive function to a monitoring function. Accordingly, it is necessary to consider measures to revise the regulations in the Taiwan Company Act to face this change. In addition, to resolve commercial dispute judgements rapidly, properly and professionally, the Commercial Case Adjudication Act has been established. There are new commercial litigation processes in the new act, and it is expected to achieve its purpose. This review chooses the Da-Tung case as an example to check whether this new act could achieve its purpose or not, and it is discovered that there are still many issues that need to be discussed in the future. One of the key issues might be the design of substantive law. In November of 2018, Grand Justices of the Judicial Yuan issued the J.Y. Interpretation No. 770. In the current Business Mergers and Acquisitions Act, it is pointed out that the minority shareholders’ rights of acquiring information and appraisal remedy is flawed. Therefore, during this year, there are solutions available directed towards this indication from judicial and legislative respects. Despite these movements, it seems that there is room to offer more measures to protect minority shareholders’ rights in the Business Mergers and Acquisitions Act.