| 英文摘要 |
When privatizing state-owned enterprises, Taiwan’s government often adopts partial privatization. This raises the issue of how the government shareholder should play its corporate governance role to administer its residual government ownership. In this article, after reviewing the current regulations related to the corporate governance of privatized enterprises, I find that the related rules issued by the Executive Yuan and related ministries highly emphasize the duty of government representatives owed to the government shareholder to protect the interest of government ownership and the tremendous control power vested to the government shareholder over government representatives. In contrast, in respect of the corresponding obligations and duties of government shareholders, the related rules do not provide a clear clue. I thus approach this issue from a corporate governance theory perspective in order to identify the major corporate governance problem after the government conducts a substantive privatization of state-owned enterprises and transfers its managerial power to private management. I identify the major problem as how to prevent private managements from tunneling the interest to themselves and hurting the interests of the enterprises and their other shareholders. On this, government shareholders should play the monitoring role to check and balance the tunneling from private managements.
On the basis of this theory, I further revisit how the current corporate laws can implement the above theory so as to impose the above monitoring duty on government shareholders. After revisiting the concepts of de facto directors and shadow directors introduced by Article 8 Paragraph 3 of the Company Act and the substantive directors developed in the court practice, I propose that government shareholders in a substantively privatized enterprises should at least constitute substantive directors and owe the duties of loyalty and care to privatized enterprises in accordance with Article 23 Paragraph 1 and Article 193 of the Company Act. Furthermore, these duties not only apply when a government shareholder de facto exercises the power of directors; they also apply when a government shareholder exercises its power of shareholders, such as exercising its voting power. On this, the Stewardship Code issued by the Taiwan Stock Exchange, which provides for the principles for institutional investors to exercise their voting power, can serve a guidance for government shareholders to perform their duties. Through the above analyses, I attempt to clarify the monitoring role to be played by government shareholders in the privatized enterprises and how the current corporate laws can be applied to achieve the said objective. |
