從比較法觀點論企業集團之重整法制

企業集團之成員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。特別是若企業集團之成員間具有資本、業務或財務之緊密依存關係時，一旦企業集團之某一成員進行重整程序，則勢必波及其他成員之正常營運，甚至引發整體企業集團之財務危機。問題在於，觀諸我國現行公司法及司法院研議中之「債務清理法草案」，皆未針對企業集團之組織特性及經濟現實，建構企業集團之重整法制。反觀美國及日本法制之理論及實務發展，已逐漸跳脫單一公司法人之思維藩籬，而致力於重新建構現代化之重整法制，以反映企業集團為同一經濟實體之現實。申言之，為建構企業集團之重整法制，必須針對關係企業重整之土地管轄原則、否認權行使之要件及對象、答覆義務之主體範圍、重整計畫之內容等重要問題，建立完整之規範體系，始能因應企業集團化之形成及發展。

關鍵字

企業集團；重整；破產；債務清理；否認權

並列摘要

As far as the corporate groups are concerned, despite that it appears each member of them is an independent and separate legal entity formally, all of them, including their capital, personnels, business operation or financial department, are integrated highly into the parent-subsidiary or vertical relationship and formed as the combined situation in law and economy. From the aspect of establishment of business strategies, enforcement of operating activities and preparation of financial statements, because the subsidiary company is controlled by the controlling company formally and virtually, the corporate groups are treated as an economic entity. Therefore, especially in the situation aforementioned, as soon as the member of corporate groups proceed to the process of reorganization, there will be highly possible to spread to other members' regular operation and even lead to financial distress in the corporate groups. Moreover, observing the Taiwanese Company Law, and the draft of Insolvency Law (Debt Liquidation Law) drawn up by the judiciary (Judicial Yuan), they do not focus on the organic character and the reality of economy of corporate group and construct the stipulations regarding reorganization for corporate groups. However, observing the theoretical and practical developments of operation in this theme for discussion in U.S.A. and Japan, instead of insisting the thinking of the doctrine of separate corporate existence, they have chosen to respond to the reality, which the corporate groups should be deemed an economic unit, and gradually endeavored to reconstruct the modern regulation of reorganization. In sum, for the sake of constituting the integrated regulation of reorganization suitable for corporate group and reacting the development and formation of corporate groups, this research will focus on the topics including jurisdiction of affiliate venue rule, the conditions of exercising the power of avoidance, the duties of disclosure to the officers and staffs, the content of reorganization pl an, and so on.