企業集團破產法制比較——解構與建構

The Bankruptcy of Corporate Groups: The Anatomy and Construction of Legal Regime

企業集團之成員企業在形式上雖各具有獨立法人格，但因在資本、人事、業務或財務等經營層面，形成緊密關聯或上下隸屬之關係，而在法律上及經濟上處於結合狀態。由於從屬公司受到控制公司之形式控制或實質控制，整體企業集團之經營實際上由控制公司之負責人所統一指揮，且從經營策略之擬定、營運活動之執行及財務報表之編製等層面觀察，企業集團實具有同一經濟實體之顯著外觀。為建構企業集團之破產法制，必須針對關係企業破產之土地管轄原則、破產管理人行使否認權之要件及對象、行使詢問權（檢查權或調查權）之主體範圍、實體性合併理論、衡平居次原則、揭開公司面紗原則及法人格否認法理之適用等重要問題，建立完整之規範體系，始能因應企業集團化之形成及發展。

As far as corporate groups are concerned, although formally it appears that each member of them is an independent and separate legal entity, all of them, including their capital, personnel, business operation and financial department, are integrated highly into the parent-subsidiary or vertical relationship and formed as a combined entity in law and economy. From the aspect of the establishment of business strategies, the enforcement of operating activities and the preparation of financial statements, because the subsidiary company is controlled by the controlling company formally and virtually, corporate groups are treated as an economic entity. Therefore, especially in the situation aforementioned, as soon as the members of corporate groups proceed to the process of bankruptcy, it will be highly possible for it to spread to other members regular operations, which might even lead to financial distress in the corporate groups. Moreover, in taking into account the Taiwanese Company Law, and the draft of the Insolvency Law (Debt Liquidation Law) drawn up by the Judicial Yuan, they do not focus on the character of inside transactions and the reality of the economy of the corporate group, and fail to construct a legal regime regarding the bankruptcy system for corporate groups to meet the development of the megasubsidiaries phenomenon. However, observing the theoretical and practical developments of the operation in this theme for discussion in the U.S.A. and Japan, instead of insisting on the consideration of the doctrine of separate corporate existence, they have chosen to respond to the reality in which the corporate groups should be deemed an economic unit, and gradually endeavored to reconstruct the modern regulation of bankruptcy. In sum, for the sake of constituting the integrated regulation of bankruptcy suitable for a corporate group and reacting to the development and formation of corporate groups, this study will focus on the topics of the jurisdiction of affiliate venue rule, the conditions of exercising the trustees power of avoidance, the scope of exercising the trustees power of inspection, the theory of substantive consolidation, the rule of equitable subordination, piercing the corporate veil, disregard of corporate entity, and so on.