經營權爭奪之亂象──以獨立董事召開股東會及透過公開收購替換董事為例

The Chaos of Fighting for Corporate Control–Using General Meetings called by Indepen-dent Directors and Director Replacement through Tender Offers as Example

經營權爭奪在臺灣資本市場上屢見不鮮，但其態樣不一而足。委託書向來是爭奪經營權不可或缺之工具，然獨立董事召開股東會解任或改選董事也是常見之現象。近來，透過公開收購取得目標公司之經營權，再改派目標公司於爭奪經營權之公司的董事也開始萌芽。這些變動對公司治理而言，絕非正面。
獨立董事可獨自召開股東會，係沿自監察人之規定。監察人應否具有單獨召開股東會之權限已有諸多爭議，而獨立董事位於董事會，理應屬公司業務執行機關之成員，其是否適宜擁有此項權力，更具爭議性。
另一方面，公開收購本為企業併購之一種型態，其發動與產業發展及經營策略有關。現迂迴透過公開收購取得或鞏固目標公司及公開收購人以外之公司之經營權，更有可議。其所涉之層面頗廣，惟於目前法制下，訴諸於董事之忠實義務應是主要選項。此外，是否引進雙重代位訴訟以為因應亦值得考慮。

Fighting for corporate control is common in Taiwan’s capital market, but they vary. Proxy contests have always been an indispensable tool in the competition for corporate control, but it is also common for independent directors to call a general meeting to remove or re-appoint directors. Recently, there has been a new trend of acquiring the target company through a tender offer and then replacing the directors of another company in which the bidder of the tender offer is fighting for the control power. These directors are the representatives of the target company in the concerned company mentioned above, and according to Article 27 of the Company Act, the target company has the right to reassign at any time. These changes are by no means positive for corporate governance.
Like supervisors, independent directors may call general meetings alone. The independent directors are members of the board of directors, which carries out the business of the Company. Therefore, it is more controversial whether the independent directors should have the power to convene shareholders’ meetings on their own. On the other hand, tender offers are originally a form of corporate mergers and acquisitions, the initiation of which is related to industrial development and business strategies. It is even more controversial to acquire or strengthen the control power of a company which the target company holds certain percentage of its voting rights in a roundabout way through tender offer. The issues cover many different aspects, but under the current legal system, the main option should be to appeal to the directors’ fiduciary duties. It is also worth considering whether to introduce double derivative action to deal with these issues.