樂陞公開收購案研究—判決探討與制度調適

我國於1988年證交法修訂時，參酌英美併購相關之立法例，以增訂證交法第43-1條，正式引進公開收購制度。近年來，在我國政府積極推動企業間互相併購下，該公開收購制度逐漸為我國企業所採用。然而，2016年8月百尺竿頭公司提出公開收購樂陞科技違約案對證券市場投下了震撼彈，且又涉及證券詐欺等不法行為，故造成金融市場動盪以及諸多負面影響，例如樂陞公司股價下跌達88.57%，成為當年最大的地雷股，甚至於該公司股票因此而下市，最終受有損害的股東多達22,000名。隨之而來，樂陞案引起社會大眾對公開收購制度之關切，致使政府不得不重新審視法規，除收購程序之外，被收購公司之公司治理及少數股東權益等議題，政府也在短期間重新修改了公開收購法令。有鑑於樂陞案收購破局之影響，同年11月旋即修正證交法第43-1條第2項，該項規定要求公開收購人須提出履行支付對價之證明﹙即「樂陞條款」﹚。本文先介紹公開收購之制度設計以及立法由來，之後，藉由探討樂陞公開收購案相關判決以及其對公開收購制度之影響，最後，檢視我國公開收購制度之調適，進而提出本文對未來公開收購制度的看法及修法建議。

關鍵字

公開收購；公開收購人；企業併購；公司治理；樂陞案

並列摘要

Taiwan's Securities Exchange Act was amended in 1998, Article 43-1 was added with reference to the western enterprise M A regulations. In recent, the action of public tender offers has been gradually acceptable by the companies in Taiwan by active promote the related policies from Taiwanese government. The successful public tender offer to acquire XPEC turned out to be a securities fraud transaction on August 31, 2016. It shocked the capital markets since this kind of frauds was first seen and XPEC also concealed the fact that the controlling shareholders with control rights used operating opportunities to engage in illegal transactions and obtain improper interests, which both violated the rights of the firms and shareholders and seriously jeopardized the development of capital markets. The stock price of XPEC decreased by as much as 88.57%, which made it the largest landmine stock in 2016. The stock was even delisted from the OTC market, and affected as many as 22,000 shareholders. This event brought tender offer rules under the spotlight and drew public attention. This failed tender offer also forced the government to review not only the regulations but also the issues in relation to corporate governance and minority shareholder rights. Subsequently, the government swiftly revised the tender offer regulations. As a response to the debacle that a failed tender offer for shares of XPEC case caused, a short paragraph was inserted into the Section 2 of Article 43-1 to require the tender offeror to provide documents that it has the ability to perform payment of the tender offer consideration. Frist of all, this article introduces the tender offer regulations, the reasons of legislation, and practice ideas. This article then discusses the influence of the XPEC case for tender offer regulations. Finally, presents the judicial review of current regulations and scholarly views on institutional adaptations of tender offer in Taiwan’s securities regulations, and then puts forward the author’s personal view and suggestions.