2017年公司法與證券交易法發展回顧

Developments in the Law in 2017: Corporate Law and the Securities Exchange Act

2017年公司法與證券交易法領域之發展，雖無具體修法成果，但在同時期，公司法修正作業已如火如荼進行中，其修法結果亦已於2018年11月開始施行。此次公司法修正之緣起與歷程，從公司法全盤修正修法委員會發起此項修法工程，過程中因與主管機關對修法理念、程序事項等有所不同，致使嗣後之修法均由主管機關負責完成。歷經此次修法，吾人或可思考如何建構一套修法機制，讓未來啟動修法工程時，確保各界不同聲音均能匯流在同一平台，進行理性而有建設性之溝通，縱使修法結果無法符合所有人之期待，但或許較能說服不同立場之人接受。在司法與實務之發展上，本文選擇大同案及台紙案所引起各種制度上之爭議，以及幾則判決進行回顧。大同案中，公司派利用董事候選人提名制度相關規定不明確，恣意排除少數股東所提之董事候選人，此等爭議進而引發嗣後之修法；台紙案涉及董事會召集權人是否限於董事長、監察人召集股東會後發生解任之情形時股東會是否自動流會，以及徵求委託書得否表明不出席股東會之問題。有關投保中心所提起之裁判解任董事訴訟，最高法院肯認下級審法院近期所做之相關見解，未來在非公發公司之部分，是否亦有適用，以及臺灣高等法院對於公司法人格否認法理之適用，擴大責任主體範圍之見解，究竟是通案適用，抑或個案適用等問題，尚待司法實務日後之發展。此外，隨著刑法沒收新制之施行，影響到內線交易犯罪所得之計算，不得再扣除成本，而最高法院已有判決開始適用此等新規定，但對於內線交易犯罪所得之計算方式，則尚未有統一之見解。 In 2017, there were no concrete new revisions in Corporate Law and the Securities Exchange Act, but the process of the revising Corporate Law was certainly in full swing. The revised amendment was finally promulgated in 2018. The revision concerned was first promoted through a committee in which the relevant industries, officials and universities proposed and composed an overall revision of corporate law. However, the committee that had cooperated with the officials stopped participating in the work because of their differences of opinion about the goals and procedures of the revision. The officials finished this work without the committee’s cooperation. In view of this disagreement, we should perhaps devise a new framework for revision work in which all the different opinions can be collected on the same platform, which would allow parties holding different stances to negotiate reasonably and constructively. Even when the results of the revision do not satisfy all the parties concerned, this kind of framework would be a better way to persuade the parties to accept this bill. Regarding judicial and practical developments, this paper focuses on the following high-profiled cases and judgments. First, the Datung case involved certain issues that arose from the then-current nomination system for director candidates and these issues might be resolved through the forthcoming revised regulations. Second, the TPPC case gave rise to three legal issues. The first is related to the chairman of the board who is the only party entitled to convene board meetings. The second issue concerns whether the legitimacy of the shareholders’ meeting convened by a certain supervisor would be affected by his or her discharge. The third issue is that the proxy could be used to interfere the shareholders’ meeting. Some of the issues invoked the regulations to be revised afterwards. Regarding the director dismissal rule, the Supreme Court maintained the lower courts’ recent opinions on the Securities and Futures Investors Protection Center’s litigation. It is worth noting that these opinions would be adopted regardless of whether a company is nonlisted. The other new development that requires attention is that the high court held that the scope of the shareholders who should be responsible for the corporate creditors could be broader as applied the disregard of corporate entity. It is noteworthy that this opinion is applied either to all the cases or only the specific case. In addition, the new regulations for confiscation have been in effect, which has changed the accounting method by which the cost should not be deducted in the case of insider trading. The Supreme Court has applied the new rule, but there is still no unified opinion about the accounting method.