新修正公司法面對之監理挑戰－以實質受益人或控制權人條款為中心

「濫用法人」或「濫用公司」來作為犯罪工具的案例，在國際上屢見不鮮，為避免法人或公司成為洗錢、資助恐怖主義與其他犯罪之「工具」，各個國際組織與國家無不殫精竭慮、想盡辦法來防堵這個問題。針對這個問題，國際上比較具有代表性的組織如FATF或歐盟，都朝同一個方向，也就是從公司的實質受益人或控制權人資訊透明來下手。因此，紛紛建議規範各國要公司採取合理措施來查明實質受益人或控制權人之資訊，而且要追溯到自然人的層級。我國新修正公司法，捨棄與已經生效之現行法規命令與國際趨勢不同之立法，可能會產生公司監理的漏洞，正本溯源之道，對於公司實質受益人或控制權人資訊之監理，必須採取與FATF、歐盟或防制洗錢辦法與共同申報審查辦法一致性之標準，始可能有效防免濫用法人或公司作為犯罪工具的問題，而完善公司監理環境而完善公司監理環境，並將這個公司監理的漏洞給補上。

關鍵字

濫用法人；洗錢；資助恐怖主義；防制洗錢金融行動工作組織40項建議；歐盟第四號指令；實質受益人；對公司具有重大控制力之人；客戶查核程序；公司法第22條之1 ；公司治理

並列摘要

It is more and more common that ＂company＂ or ＂legal person＂ becomes the vehicle to commit the crime such as ＂money laundering＂ or ＂terrorist financing＂. In order to prevent the misuse of legal persons for money laundering or terrorist financing, more and more countries or international organizations in the world aremaking efforts to consider and conduct various methods for solutions. One of the most efficient ways to prevent the misuse of ＂company＂ or ＂legal person＂ taken by Financial Action Task Force (FATF) and European Union (EU) is to try to find out who the beneficial owner is of a ＂company＂ or ＂legal person＂. Specifically, the checking process has to achieve to the level of ＂natural person＂. That means the authority of each country has to make sure it is competent to get ＂transparent＂ information of each ＂company＂ or ＂legal person＂. Therefore, both FATF and EU urge other countries or member states to take their recommendations to implement the comprehensive and consistent measures to achieve the aforementioned goals. Meanwhile, as they also acknowledge that countries or member states have diverse legal, administrative and financial systems, therefore, they just set up standards for countries or member states to adapt to their particular circumstances. The procedure to find out who the beneficial owner is of a ＂company＂ or ＂legal person＂ is called ＂customer due diligence＂ (CDD). The CDD process is not just a mechanical measure. It is a cascading process, which means that multiple measures will be used to find out who really controls or has control interest of a ＂company＂ or ＂legal person＂. As a result, even the ＂legal arrangement＂, taking the trust for example, will be penetrated. The Company Act had just been revised by the ＂Legislative Yuan＂ (the Congress in Taiwan) and came into force on November 1, 2018 (the latest Company Act). Prior to the passage of the latest Company Act, two regulations had been enacted because APG would come to Taiwan and conduct mutual evaluation in November this year. And these two regulations adopted the very identical standards with FATF or EU in identifying who the beneficial owner was. However, the latest Company Act does not follow the same standard. Article 22-1 of the latest Company Act, does not demand the representative director to file the report with beneficial owner information to the government agency. Instead, it just requests the information of shareholders who own more 10 % shares of a company and the information of manager of a company. It is easy to find out that the latest Company Act creates a loophole and may affect the efficiency of corporate governance. Accordingly, it is highly advised to reconsider whether Taiwan should follow the identical standards set up by FATF, EU or other countries so that the loophole could be made up.