現金逐出合併下少數股東救濟制度之再探討

現金逐出合併制度係企業組織再造之一環，其透過現金對價換取股東之股份，使得股東喪失股份財產權，目的係為減少股東人數進而下市降低法遵成本、減少意見衝突所產生之代理成本。然此制度伴隨強制驅逐股東效果，因此如何保護少數股東成為此制度重要之議題。我國現行法上多以股份收買請求權、股東會決議撤銷或無效之訴等事後救濟制度作為保護手段，惟於釋字第770號原因案件中原告股東雖主張返還股票，最終卻取得「公平價值補償」之救濟，此凸顯少數股東保護首先於「時效性」上，並無任何事前救濟或預防措施，縱有股東會決議之門檻要求，亦容易遭規避或控制，使得少數股東自始至終僅能仰賴最後推翻股東會決議之可能性，否則資訊揭露或繼續持股之機會將永遠喪失，惟事後推翻併購決議影響法安定性甚鉅，甚至對於著重時效性之企業併購而言更是一大致命傷；另外，我國現金逐出合併制度亦凸顯股東「投資自由」無法受保障之問題，股東無法自由選擇繼續持股，僅能被迫取回出資離開公司，此即忽略繼續持股之期待利益亦是不少股東之投資選擇，閉鎖性公司中股東參與公司治理之股份使用價值更是不容忽視。　　關於前述兩個問題，由美國法股份收買請求權之歷史沿革中可知，其出現便是為了保障股東於現金逐出交易下能自由取回出資，不必受強迫繼續留在公司，現今反而矯枉過正，僅能取回出資，忽略投資自由之重要性，因此本文主張以憲法第22條作為投資自由之憲法基礎，賦予少數股東選擇併購對價之權利，然僅此尚有不足，蓋任何併購對價皆可能遭併購發動方以不合理比例操弄，故仍須搭配事前制止請求權，始能貫徹投資自由。對此，日本法與美國法皆設有事前救濟制度，兩者雖有不同，然皆係於併購早期階段即預先預防可能之利害衝突或資訊揭露不足等問題，並搭配假處分制度給予股東救濟實益，特別於商業法院上路後，定暫時狀態假處分更有本案化與獨立解決紛爭趨勢。前述事前救濟制度係我國所無，本文主張得適用公司法第194條之董事行為制止請求或受託義務履行請求權作為實體法請求權基礎，同時得參考美日兩國，以「資訊揭露不足」、「併購交易涉及詐欺、自我交易或不實陳述」及「併購對價不當」三者作為事前制止事由，並以其要件作為保全必要性之具體判斷指引。首先，資訊揭露不足向來僅能仰賴事後救濟之缺陷將被補足，且於併購早期揭露併購相關資訊更有助於事後救濟制度中證據之取得，降低股東舉證負擔與法院審查時間；再者，倘併購交易涉及詐欺將使股份收買請求權失去功能，事前制止請求將能解套此種利害衝突下之產物；最後，透過「併購程序充足與否與揭露」判斷對價是否不當，區分交易具利害衝突與否，分別要求不同程序，倘具利害衝突，則須踐行獨立委員會審議及少數股東多數決；倘否，僅須踐行一般合法程序即可，此與近期美日法院逐漸重視雙方當事人所形成之主觀價格思維相符合，更能運用於後續股份收買請求權公平價值逕採併購價格。最後，該等事前制止事由容易補足且易於判斷，故能兼顧併購效率，亦能賦予少數股東完整救濟制度。

關鍵字

現金逐出合併；事前制止請求；投資自由；股份收買請求權；公司法第194條；董事受託義務履行請求；定暫時狀態假處分

並列摘要

The cash-out merger, which gives cash as an exchange for shareholders’ shares, is one of the common approaches under corporate reorganization. The system infringes shareholders’ property rights by getting rid of them out of the company against their wills to lower the cost of listing and agency problems. Therefore, how to protect minority shareholders becomes a crucial issue. In Taiwan, shareholders could only adopt relief afterwards such as appraisal rights, the withdrawal or invalidation of resolution of the shareholders’ meeting. However, in Constitutional Court Reporter Interpretation NO. 771, the plaintiff claimed to return its shares of the company it had been owning, which had been compulsorily purchased by the company due to the cash-out merger. Nevertheless, the Court conferred “fair value” of the shares as remedy instead of responding to the plaintiff’s claim. The issue mentioned above reveals two problems. First, “timing for remedy” is important. Under current laws in Taiwan, there is no ex-ante remedy for merger, so minority shareholders could only rely on relief afterwards such as the participation in resolution of the shareholders’ meeting or the withdrawal of it, which could be avoided easily and cause a significant damage on legal stability and the merger benefit, instead of immediate remedies for not getting enough merger information in advance and owning shares continuously after the merger. The second problem is “the lack of investment freedom”, which means minority shareholders could not choose the consideration of the merger on their own. They only could take cash consideration and leave the company against their wills. To some shareholders, owning shares continuously to earn dividends or voting for business decisions, especially for closely held corporation’s shareholders, are their priorities. 　　To approach the two problems mentioned above, the paper refers to the history of appraisal rights in United States of American law. Its purpose of statute is to protect minority shareholders’ right to get cash consideration and leave the company without being forced to stay at company after the merger. Indeed, the appraisal right contains the meaning of investment freedom. So, the paper argues that the Article 22 of the Constitution of The Republic of China as the foundation of “freedom of investment”, giving shareholders the right to choose merger consideration. But, to put the right into practice, the paper also argue that we should introduce “cease-to-act right” as a complementary measure. This paper refers to Japanese and American law, and there are ex ante remedies such as cease-to-act rights or injunctions for merger in their legal systems. The purpose of these remedies is to avoid the conflict of interest between shareholders or the lack of merger information disclosure, making minority shareholders get relieves in early phase of the merger. Also, we need to apply preliminary injunction to achieve the purpose, for the trial always takes too long time. Especially after we introduced commercial court system, the preliminary injunction has the similarity to the adjudication procedure and the function of solving the disputes independently. 　　In Taiwan, there is no ex ante remedy for merger, so this paper tried to build up a similar system by interpreting the Article 194 of the Company Act. The elements of the cease-to-act remedy includes “the lack of merger information disclosure”, “the merger that gets involved in fraud, self-dealing and misrepresentation” and “improper merger consideration”. These elements could be the concrete guidance for the need of protection in preliminary injunction proceeding. With the establishment of the cease-to-act right, the merger information could be disclosed in early stage instead of being relieved by relief afterwards, and it also could be helpful for evidences obtaining in relief afterwards, which could lower the burden of the plaintiff and the court. Moreover, it could solve the problem of the conflict of interest when the appraisal right is dysfunctional. Finally, through the judgement on whether certain procedures are conducted and disclosed or not, the court could inspect if the consideration is proper, and we could apply different procedures according to different extent of the interest conflict. If there is a large conflict of interest in the merger, the company should obtain the approval of both an independent special committee and a majority of the minority stockholders; if not, the company only needs to follow legal procedures. The emphasis on “the procedure of the merger” also conforms to the trend in American and Japanese laws. This approach could even be applied when the court assess the fair value of the shares in appraisal procedure. In conclusion, the elements of the cease-to-act right could be made up and judged easily, so it could strike a balance between shareholders’ immediate relief and the benefit of the merger.

並列關鍵字

cash-out merger ； cease-to-act right ； right of investment ； appraisal right ； Article 194 of the Company Act ； fiduciary duty ； preliminary injunction