2018年公司法與證券交易法發展回顧

Developments in the Law in 2018: Corporate Law and Securities Exchange Act

2018年7月公司法修正三讀通過。本次修正歷時超過兩年，增修條文高達148條。解除管制是本次修正的重點之一。為達此一目標，立法者主要參考2015年所增訂之閉鎖性股份公司專節的相關規定。本文將就此一作法的優劣得失加以討論。此外，本文作者曾主張我國公司法係一實力派股東本位模式之法制。本文認為此一模式也可以讓吾人更加瞭解修法所涉之許多條文，特別是最具爭議的公司法第173條之1的股東會召集權以及最後未能通過的原草案第193條之1的董事資訊權的規定。其他於2018發生之公司證券法相關之重要事件，也可以從其與公司法發展之相互關連加以分析。司法院大法官於2018年11月作出的司法院釋字第770號解釋，雖係針對企業併購法於現金逐出合併的適用所生之爭議，然從企業併購法與公司法兩者的關係來看，問題的根本解決或許仍應回到公司法。另外，就投保中心得否依投保法第10條之1之規定代公司向已卸任之董事與監察人起訴，最高法院明確予以否定。此一判決引發了投保法的修法，但在公司法修法過程中，立法者或主管機關對此卻無動於衷，也是值得思考的現象。最後，證交法於去年經歷三次修法，本文亦就與公司法相關之獨立董事執行業務與員工薪資揭露進行簡要討論。

In July 2018, the Legislative Yuan passed the amendment to the Taiwan Company Law (“Company Law”). The legislative process dragged on for more than two years and resulted in an overhaul in which the number of provisions affected is up to 148. De-regulation is one important feature of this amendment. To meet this end, this amendment borrows from the rules on Close Corporation which were put into the Company Law in 2015. The advantages and disadvantages of this approach are discussed. In addition, this author has argued elsewhere that Taiwan Company Law is better understood as a blockholder-centric model. We can use this model to shed light on two most controversial provisions, among others, in the draft amendment. One is the new-enacted Article 173-1, which gives the majority shareholders the right to call a shareholder meeting. The other is regarding the directors' right to information. This rule was in the draft as Article 193-1 and sent to the Legislative Yuan. However, due to fierce opposition from industrial communities, it was finally turned down by lawmakers across the aisle. Other legal milestones taking place in 2018 in the field of corporate law and securities regulations can also be analyzed in the context of their interrelationship with the development of the Company Law. Grand justices of the Judicial Yuan issued the J.Y. Interpretation No. 770 in November 2018. The focus of the interpretation is on the constitutionality of provisions in the Business Mergers and Acquisitions Act applying to the scenarios of cash-out mergers. The Business Mergers and Acquisitions Act was enacted in 2002 for the purpose of avoiding the more stringent rules in the Company Law. In this light, it would be hard to find a better solution without revisiting the Company Law. Moreover, in the supreme court judgement, no. 2420 in 2017, the Supreme Court affirmed the lower courts' rulings and denied that the Securities Investor and Futures Trader Protection Center could bring a derivative suit on behalf of a corporation against its former directors and supervisors according to Article 10-1 of the Securities Investor and Futures Trader Protection Act. The authorities have started the process of revising this Article 10-1 to change the rule on derivative suits since this judgment was handed down. In retrospect, one should wonder why this issue had never been brought to attention to the lawmakers and the authorities when the Company Law amendment was in deliberation. Lastly, the Securities Exchange Act underwent three revisions in 2018. This paper briefly discusses two new rules which are related to the Company Law. One is on the reinforcement of the independent directors' powers and the other is on the disclosure of the average amount of all employees' salaries.