我國公司法股份有限公司股東以契約權利作價出資之可行性案例研究

Contract Rights as the Consideration for Issuance of New Shares: Cases Study under Taiwan Corporate Act

公司法過去所堅持的資本三原則，在幾次修正中迭經修正，其中資本確定原則已經幾乎與最早的法定資本完全不同，資本維持原則雖無明文規定但學說及實務均肯定其規範效力，透過不同條文規範目的及解釋得到該原則之根據，此一原則亦在數次修正過程中開放擴大得作為資本的種類範圍，但是若與會計上得認列為公司資產範圍的財產概念相較，我國公司法及主管機關對於得作為發起人／股東出資之財產概念範圍仍屬保守。本文擬以得認列為公司資產負債表資產項下之契約權利為範圍，討論其是否得作為出資之標的。過去認為資本維持原則要以保障債權人為目的，但是以英美法為例，得作為抵繳股款的財產有相當範圍係以為公司能夠順利開展營運為目的，因此包括高階主管的未來勞務提供都可以作為出資抵繳之標的。

In the past decades, the Taiwan Corporate Act adopted several amendment for the capital requirements, admitted considerations for the shares corporations. However, if we compare the admitted consideration for issuance for new shares between the RMBCA, Delaware, or some other US states, we can find that the admitted considerations for shares corporation is more narrow in Taiwan than in the U.S. In the article, the author will try to use a simplified real case and one Hypo case to discuss the subscriber/promoter/shareholder provide an Exclusive Distribution Agreement, with several incidental obligations in the contract, as the proposed considerations for the corporation to issue new shares to them. The case 1 was a real case in Taiwan and was rejected by the Ministry of Economic Affairs (MOE). Although the conclusion of the rejection might be correct under the current Corporate Act; however, the conclusion might be inconsistent with the actual necessities of the real business world in Taiwan. Even the proposed Exclusive Distribution Agreement is not accepted as an adequate and lawful consideration for issuance of new shares, the subscriber/promoter/shareholder shall be able to provide cash as consideration for the new shares and sign the Agreement with the corporation under bona fide and arm’s length negotiation. The corporation then will be obliged to pay royalties, franchising fee, to the subscriber/promoter/shareholder, which will bring us to the same destination if the original proposal being accepted by the MOE. Thus, is the current Corporate Act and practice adopted by MOE remains reasonable?