家業傳承法律制度之選擇與爭議問題論文摘錄

The Choices and Controversies of the Legal Regimes for Family Business Succession

成功大學法律學系博士學位論文（指導教授：陳俊仁）
家族企業是歷史悠久且相當普遍的企業型態，創業的第一代在事業有成之後，最關心的是接班的問題。依經濟部對1,068家中小企業訪查的統計結果，只有大約39.61%的中小企業表示目前有企業傳承的行動，顯示當前國內企業對於傳承議題的重視度有所不足。本文先介紹家族企業的特色與家族企業傳承面臨的問題，再從法律制度的選擇為中心，探討家族企業選擇成立「信託」、「財團法人」及「閉鎖性股份有限公司」的特色與優缺點。
透過本研究可以發現，家族企業透過哪一種方式穩固控制權、達到家業傳承，跟家族企業的規模有很大的關係，大型家族企業例如台塑集團王家、遠東集團徐家早年透過財團法人控股。此外，企業規模越大，會選擇多種方式穩固經營權，例如搭配境外信託、境內公益信託。至於中小型的家族企業，可以選擇股權信託、閉鎖性股份有限公司，甚至將信託與閉鎖性股份有限公司搭配運用，重點在於透過契約的設計與安排，靈活運用各種制度，預防家族紛爭，以達到家業傳承、永續經營的目的。

Family businesses have a long history and are quite common. After the first generation of entrepreneurs succeeded in their careers, they were most concerned about succession issues. According to the statistics of 1,068 small and medium-sized enterprises surveyed by the Ministry of Economic Affairs, 39.61% of small and medium-sized enterprises indicated that they have taken steps to carry out business succession, which shows that domestic enterprises are not paying enough attention to succession issues. This article first introduces the characteristics of family businesses and the problems faced by family business, and then focuses on the choices of the legal regimes and discuss the characteristics, advantages and disadvantages of family businesses choosing to establish ’’trusts,’’ ’’foundations’’ and ’’close corporations’’.
Through this research, it can be found that the method through which a family business can stabilize control and achieve family succession has a lot to do with the scale of the family business. Large family businesses such as the Wang Family of Formosa Plastics Group and the Xu Family of the Far East Group controlled shares by foundations in the early years. In addition, the larger a company is, it will choose a variety of methods to consolidate its management rights, such as matching overseas trusts and domestic charitable trusts. As for small and medium-sized family businesses, you can choose the use of equity trusts, close corporations, or even a combination of trusts and close corporations. The focus is to use various regimes flexibly through the design and arrangement of contracts to prevent family disputes, so as to achieve the purpose of family business succession and sustainable operation.