公司資本的容許原則與範圍──從債權人保障觀點與協助公司開展經營的觀點比較

The Principles and Scopes of Acceptable Assets under Capital-Maintenance Rule: Views from Protection of Creditors and Facilitation for the Start-Up Operation

資本維持原則之目的在於保障公司交易相對人的債權實現，當然也存有協助公司經營運作的功能與目的，但是，兩個目的之間存在著互不相容的特徵可能性，例如，基於保障債權人的功能，作為資本維持原則的公司資本項目，應該具有得做為合法交易的客觀財產價值，也必須具有得經由法院強制執行程序變價實現債權擔保的特性；但是，如果基於為了協助公司開展經營壯大業務，則某些勞務技能，甚至特定產業的特定人的勞務具有比現金出資更有效益，然而勞務就屬於無法經由強制執行變價的特性。股東為了以勞務為出資，可以選擇投資閉鎖性股份有限公司，但是勞務出資在尚未攤提完畢之前，如果股東會特別決議將公司轉換為一般性股份有限公司，則其效果似有爭議。

The Capital-Maintenance Rule in the Corporate Act of Taiwan is for the purposes to protect its creditors, voluntary or involuntary, and for the equal treatment of all promoters/shareholders. This rule stands as mountain since the Act enacted in 1929.
In the past two decades, the Corporate Act of Taiwan amended several provisions and slightly changed the rule of Capital-Maintenance to reduce the requirements of establishment a new business corporation and to assist the start-up of the new established corporation. In addition to cash, the Corporate Act of Taiwan put the necessary property for the corporate’s operation and Intellectual Property and credit money as acceptable assets for the paid-in capital of a business corporation.
In this era of Knowledge Economy, the business ideas, business models, and all the experience in the specific promoters or shareholders brain which are owned by him/her-only. All of the ideas and experience will be devoted into the corporation through the form of labor service, past of future. The Corporate Act of Taiwan recognized the labor service be the acceptable assets as the paid-in capital for the closely/privately held company only, but not for the general company limited by shares. However, the Corporate Act of Taiwan allows the closely held company to switch it form into general limited by shares through the shareholders’special resolution and without any other specific procedure or accounting prerequisite requirements. Thus, the promoters/shareholders will be able to establish a closely held company and put future labor service as the paid-in capital as the consideration for the shares of the company, and switch the closely held company into a general company limited by shares.
In this article, the author will try to discuss the amendments and the acceptable assets for a new start-up company from the different perspective of the protection of creditors and from the view to assist and facilitate the new company in this era of Knowledge Economy.