論現金逐出交易中少數股東之保障——以股份收買價格裁定程序為中心

民國107年11月，大法官作成之釋字第770號解釋在明確肯認現金逐出合併制度與免除利害關係股東與董事迴避規範之餘，同時強調法規仍應使被現金逐出之少數股東受到「充分之資訊確保」及「公平價格確保程序」之保障。本號解釋不僅引起大量之學術關注，亦使主管機關旋即開啟修法之討論。然而，細究草案提出到三讀通過間之內容變動與立法過程，似乎可以發現行政機關與立法機關並未完全遵照大法官之意旨進行法規修正。其中，大法官雖肯定我國之股份收買請求權制度，應得以作為「公平價格確保程序」保障被逐出股東。然而，觀察我國之裁定實務，絕大多數之現金逐出案件中，股東皆未能藉由此一程序取得較併購價格更高之公平價格。鑑於現金逐出交易為控制股東所發起並帶有強烈利害衝突之關係人交易。控制股東完全得以藉由其對於目標公司之控制力，於市場價格低於股票真實價值時，以不公平之併購對價逐出並剝削少數股東之利益。法院於此類案件中仰賴市場價格為標竿，並全盤肯定併購價格之公平價格決定方式，不僅忽略考量現金逐出交易之本質，亦有明顯無法保障少數股東之疑慮。基此，本文於爬梳德拉瓦州法院如何判斷此類交易之股票公平價格後，將以美國法所採用之方式與論理為借鑒，從我國法規之演變與交易實務角度出發，指出我國法院判斷公平價格之方式應有不妥。同時，於法規維持現狀下，提出法院應得以藉由其裁定程序之裁量權限，針對現金逐出交易採用特殊之公平價格決定方式，呼應該程序應保障被逐出股東取得公平價格之大法官期待。最後，對於法院裁定程序可能面臨之潛在問題，指出法院未來得以前進之方向與筆者初步之想法。

關鍵字

現金逐出；現金合併；股份收買；公平價格；釋字第770號解釋；企業併購法；股份轉換

並列摘要

In November 2018, J.Y. Interpretation No. 770 confirmed that only when the minority shareholders who have been driven out by cash-out mergers are protected by the “assurance of sufficient information” and the “assurance of fair price” can the regulations allowing cash-out mergers and interested shareholders and directors to exercise their voting rights in such a conflict transaction be constitutional. The Interpretation not only aroused great academic attention but also prompted the Ministry of Economic Affairs to immediately start discussions on the amendment of the Business Mergers And Acquisitions Act. However, after close examination of the changes in content, as well as the legislative procedure starting from the draft amendment proposal to the adoption of the third reading, it seems that both the Executive Yuan and Legislative Yuan did not fully comply with the instructions of the Interpretation No. 770 when making the amendment. The appraisal right was designated by the Interpretation No. 770 to assure that the cashed-out minority shareholders obtain a fair price. However, in most cash-out cases, the dissenting shareholders have not been able to obtain more than the acquisition price through the appraisal proceeding. Cash-out merger is a conflict transaction initiated by the controlling shareholders with a strong conflict of interest. The controlling shareholders can use their controlling power over a target company to drive out and exploit minority shareholders with an unfair merger and acquisition (M A) consideration when they are fully aware that the current market price is below the stock's true value. Court, in such cases, frequently relied on the market price as a benchmark to justify its deferring to the merger price as a reliable indicator of the fair price. This practice neglects to consider both the nature of the cash-out transactions and the obvious unfairness done to the minority shareholders. Based on this, this thesis will first comb through how Delaware court determined the fair price of shares in such transactions and then draw on the approach and reasoning adopted in Delaware case law as a reference to call attention to the way how our court’s determination of the fair price has been inappropriate under the perspective of the evolution of Taiwan laws and regulations as well as the transaction practices. At the same time, under the present laws and regulations, it will propose how the court might exercise its discretion differently toward the determination of fair price when addressing cash-out transactions, thereby reflecting the expectations of the Interpretation No. 770 in which the procedure should assure that the cash-out shareholders obtain a fair price. Finally, when considering potential issues that might confront the court's ruling procedure, the author will suggest the future direction in which the court might turn and present the author's preliminary ideas.