股東優先認購權之取得喪失與變更

Discussion on the Acquisition and Restriction of Shareholders’Pre-emptive Subscription Rights

股份有限公司之資本是由股東之出資所形成，公司雖因設立註冊轉化為獨立之法人，但本質上係由股東依出資比例所共有，股東基本上為公司之所有權者，其權益之合理保護為資本形成之原動力，為保障公司之增資股東股權不被稀釋，與維護因增資之價格偏離實際價值而侵害股東之權益，故大部分國家地區之立法例都將原股東優先認股權(pre-emptive right)列為保護之基本事項，然因股東認股之程序可能影響公司籌集資金運作機制之順暢與時效需求，故有愈來愈多排除或限制股東優先認股權之情形，例如私募、上市櫃股權分散與時價發行，或認股權憑證、附認股權特別股等新金融商品之創新所需等，使股東優先認購權之保護有逐漸退縮之趨勢，實務上更常見各種不當之操作損害原股東優先認股權之案例，因此如何均衡當前之資本市場環境需求與兼顧原股東之基本權益之保護，本文擬從理論分析出發，並與結合實務發生案例之探討，歸納出原股東優先認股權之應有定位與合理規範，希望能提出具體之股東優先認購權規範之基本準則，以善盡保障股東應有之權益。

The capital of a company is composed of contributions from shareholders. Although the company is transformed into an independent entity due to its establishment and registration, it is essentially owned by shareholders in proportion to their capital contribution. Since shareholders are basically the owners of the company, their rights and interests must be reasonably protected. As the driving force for capital formation, in order to protect the company’s capital increase shareholders’equity from being diluted, and to protect the rights and interests of shareholders caused by the deviation of the capital increase price from the actual value, the legislation in most countries and regions provides the original shareholders with pre-emptive rights and listed as basic matters for protection. However, because the procedures for shareholders’stock subscription may affect the smoothness and timeliness of the company’s fund-raising operation mechanism, there are more and more circumstances that exclude or restrict shareholders’preemptive rights, such as private placements and the dispersion of listed on the stock exchange or an OTC market, and the additional paid-in capital issuance of current prices, or the innovation needs of new financial instrument such as stock warrants and special stocks with stock options, the protection of shareholders’pre-emptive subscription rights has a tendency to gradually shrink, and in practice it has been harmed by various improper operations. Cases of pre-emptive rights for original shareholders are also heard from time to time. Therefore, how to balance the needs of the current capital market environment and the protection of the basic rights and interests of shareholders, this article intends to start from a theoretical analysis and discuss practical cases to summarize the following regarding the proper positioning and reasonable regulation of the shareholders’pre-emptive rights, This article hope that categorize some basic principles for the regulation of shareholders’pre-emptive rights, and can be put forward to fully protect the interests of shareholders.