公司敵意併購防禦措施之研究

A Study on Hostile Takeover and Defensive Tactics in the Context of Company Law

系所名稱：財經法律研究所 學位別：碩士 畢業學年：96年 指導教授：朱德芳 近幾年隨著全球市場之自由化以及各國公司法制之日趨整合，敵意併購此種原本於英美國兩國較常發生之併購類型，亦漸漸活躍於全球市場。世界各國對之亦已從過去之輕蔑態度，轉而承認其係企業爭奪控制權的正常現象，並進而積極討論並研擬相關法制。而我國近幾年法令及市場環境變遷，亦有利於我國敵意併購市場之發展，並使得我國敵意併購案件日漸增多。因此，我國實務界與學術界皆多預測，未來我國敵意併購亦將與世界各國一般，呈現一種趨勢。只是敵意併購該併購類型，由於違反目標公司現任經營者之意願，目標公司現任經營者為抵制敵意併購，即會採取各式各樣的防禦措施，但目標公司經營者是否得採取防禦措施抵制敵意併購？對於該等防禦措施應如何規範？主管機關與法院應如何管理與審查敵意併購與防禦措施所產生之相關爭議？從法制政策面而言，該些議題均觸及公司治理的基本問題，包括董事會與股東會權責劃分以及董事之受託義務內涵等。無論如何，目前國內學者對於上述這些極具複雜及爭議議題之研究才剛起步，而我國對於敵意併購防禦措施之法令與法制政策明顯尚付之闕如。本文基於上述問題意識，首先從經濟效率之概念探討為起點，探討公司本質經濟理論，並以此作為本論文主題—公司敵意併購防禦措施—議題研究上之理論基礎。接著探討敵意併購之意義以及各種敵意併購類型，並進一步比較造成美國與我國實務上利用敵意併購手段差異之法制成因。再來則從經濟效率觀點探討產生敵意併購之誘因及經濟價值？以及敵意併購造成公司相關利害關係人間怎樣之利益衝突與財富移轉效果？藉由探尋這些問題之答案，瞭解支持與反對敵意併購學說理論之爭議核心以及因敵意併購而生之防禦措施法制政策上之爭議。本文並據此進一步地分別探討美國與我國防禦措施之理論與實務，經由美國與我國學者對於防禦措施所提出之分析與批評，作為建構適合於我國之防禦措施法制規範時之參考資料，並依此作為本文意見之依據。最後則是綜合本文前述之研究意見，作為本篇論文之結論。

In the past few years, global market liberalization had compelled corporate integration. Thus, hostile takeovers, once the dominant practice of British and American firms, had become a modus operandi globally. Many nations once held the attitudes of apathy and negativism toward hostile takeover, yet, due to the normalization of merger & acquisition, whether in the spirit of hostile or friendly, had forced the judiciary and legislative branches of various governments to take notice of such trend and respond accordingly from a fiscal direction. In the past few years Taiwan had seen a cataract of merger & acquisition due to multitude of causes in the the economic trend and business cycles, thus the cases involving hostile takeovers, whether legal or otherwise, had surged accordingly. Consequently, whether from the considerations of pragmatism or academia, the cascading effect of such legal-business tendency had corresponding reflected in Taiwan's economy. Incontrovertibly, hostile takeover is controversial for no other reason than that it had often violated the free will of the targeted company and its primary stakeholders and directors. In opposition to such hostile takeover, many targeted companies had resorted to the implementation of assorted defensive tactics. Nonetheless, a fundamental question had arisen due to such action: is it necessary for the targeted companies to enforce defensive measures? How can a government body, whether legislative, administrative, and/or judicial, control such tactics within the realm of legality? How should administrative agencies and the courts view and review hostile takeover and defensive tactics and their collective resultant disputation and repercussion? From the strictly legal perspective, such issues can be alluded to the fundamental principles of corporate governance, inclusive of, but not exclusive to, the allocation of powers between board of directors and shareholders, as well as the substance and capacity of directors' fiduciary duty. Regardless, the experiential researches and discussions on such intricate and contentious topics are still in the stage of infancy in Taiwan. Furthermore, the legal policies and the administrative directions on hostile takeover has been opaque at best presently. With such realization, the initial stage of this paper will explore, explain, and expound the concepts of economic efficiency as well as corporate microeconomic theories so as to lay the foundation. Subsequently, the theoretical principles of corporate hostile takeover and the inferable defensive tactics will be explicated. A general introduction defining the act of hostile takeover and the methodology of such would be clarified further, with comparative evaluation of case studies to assess the differences of such subject between the United States and Taiwan. Moreover, some economic-philosophical inquires on hostile takeover would be asked and answered in this paper. Key questions such as: What are the economic incentive of hostile takeover? Has any substantial economic value been created by such act? Has such act caused conflict of interest, if any, for all the affected parties during and throughout the entire hostile takeover process? Is there a so-called "transaction of wealth" effect actualized by hostile takeover? By the acts of asking these questions and seeking their elucidations would serve to understand the theories, core values, and the motives in regard to the acts of hostile takeover. On the practical side, this paper will also provide some landmark hostile takeover cases to illustrate the finer details of such issues in the real world. With critiques and dissertations from both American and Taiwanese scholars and experts as references. By and so, these case studies can be taken as the materials of advertence for future evaluation and assessment on such said subject. Having conducted fact-findings and scrutinies on hostile takeover, personal recommendations and legal opinions will be provided as the concluding statement for this analytical thesis for those who will find the necessity to delve into the subject of hostile takeover in posterity.