| Summary: | 碩士 === 國立臺灣大學 === 法律學研究所 === 95 === This is a framework overview of principles of enterprise reorganization and contains necessary generalizations in order to establish and examine enterprise reorganization legal policies during insolvency law reform process in Taiwan. In 1966 Taiwan adopted reorganization procedure for rescue of public companies faced with financial difficulties, aiming to reduce private losses (eg. job saved), public losses (protection of the economy, especially in case of financial crisis) and maximize creditor recoveries. Since then, reorganization procedure, as observed, however, has not been used effectively leading to a very low success rate of companies being saved. The reasons of ineffectiveness and low success rates are thus discussed in this thesis.
The method in this thesis mainly adopted is to take the legal policies as a starting point to discuss current insolvency legislation and the bills proposed by the Administrative Yuan and Judicial Yuan. After the analysis of judicial decisions, domestic and foreign academic materials (mainly from the US and the UK), legal policies of enterprise reorganization are drawn as Chapter 2 of this thesis. Although the most important and distinctive objective of enterprise reorganization is enterprise rescue, the perfect system would not only aim at single party, in instant case, the debtor. The rights and interests of creditors shall not be disregarded.
As the insolvency law reform has begun to re-shape enterprise reorganization legal system since the 1990’s, Enterprise Insolvency Bill has been raised by Executive Yuan in 2005 and the new Insolvency Bill proposed by Judicial Yuan is still under way. This thesis further observes legal policies during the law reform process, comparing them with current legislation in Chapter 3. In Chapter 4 the thesis examines if they adequately fulfill insolvency law requirements, and evaluating their efficiency and effectiveness in implementation.
In terms of enterprise rescue, in order not to worsen debtors’ financial situation as well as not to jeopersize inequality among creditors, the maintenance of assets of debtors is vital. The “Enterprise Insolvency Bill” raised by Administrative Yuan shows the awareness of proposers in this respect by virtue of the adoption of automatic stay. As to promoting efficiency of the procedure, the thesis further puts emphasis on the importance of clearness of legislation and duties of administrators and the court. The fairness and effeiciency are highly demanded in reorganization proceeding, so the distinction has to be clearly drawn between claims happening before the start of the proceeding and those happening after the start of the proceeding. Disclosure of information to parties, and protection of rights to participation by parties ought to be strengthened.
Corporate governance issues in reorganization proceeding being not properly regulated, and court’s inefficiency in dealing with corporate rescue, have resulted in delay, high costs of reorganization proceeding and jeopardized creditors’ willingness to consent enterprise rescue in Taiwan. Subsequently, in the end of the thesis, from the analysis of current legislation and comparative study of English and the US law, corporate governance structure of reorganization are discussed. The attitude of the court, the competent authority, is also decisive in promoting the efficiency of reorganization proceeding. It is hoped that the court will pursue the objectives of acuteness, efficiency, flexibility and protection of parties’ rights to participation in coping with cases with respect to enterprise reorganization.
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