論公開發行股票公司變更章程召集事由之揭露義務及違反效果

The Information Disclosure Transparency of Convening for Alteration of Public Offering Companies’ Articles of Incorporation and the Annulment of the Resolution in the Shareholders’ Meeting

公開發行股票公司藉由公開發行向市場募集資金，應賦予其更高程度之股東會資訊揭露義務，避免董事會操縱通知及公告之召集事由記載內容，利用資訊不對稱，影響股東決定是否親自出席、如何行使表決權。在現行法制下，過去數十年來對於公開發行股票公司變更章程召集事由載明義務程度之要求，以及對於「臨時動議」與「修正案」概念之解釋，均應有所檢討，始符現代公司法思維下之法律秩序，以達保障股東權益之目的。

 

“The Information Disclosure Transparency” is a top issue of the modern corporation governance principle discussed in OECD, United Nations, the United States of America, Germany, and etc., especially for public offering companies with increased regulatory scrutiny and less control for majority owners and company founders. With the amendment of Taiwan’s “Company Act” section 28, 172-1, 177-1, 177-2, 177-3 and the promulgation of“Regulations Governing Content and Compliance Requirement for Shareholders’ Meeting Agenda Handbooks of Public Companies,” the foundation of reliance upon which shareholders had placed in the past decades to determine whether or not and how to exercise their voting powers, for example, attending the meeting in person, in writing or by way of electronic transmission, appointing a proxy to attend the meeting, has been altered. The new foundation as well as “Securities and Exchange Act” section 25-1 and “Regulations Governing the Use of Proxies for Attendance at Shareholder Meetings of Public Companies” explicitly impose an obligation on public companies to disclose the specific articles scheduled to amend, instead of merely sending convening notice subject to Company Act section 172 paragraph 5, with which the incumbent directors used to take advantage of asymmetric information to preserve their interests. Therefore, the pertinent judicial opinions about the obligation of disclosure and the construction of “extemporary motion” and “amended proposal” should be reviewed under the principle of protecting shareholders’ rights to be in accordance with the purpose of legal framework in modern society. The violation of the obligation of disclosure may render the resolution of amendment to articles in vain, however, the discretion is still vested in the court.