| Summary: | 碩士 === 東吳大學 === 法律學系 === 103 === The guiding principle of corporate governance was the pursuit of shareholder wealth maximization, and thus while pursuing high profit, the corporate may cause huge damages to the creditors, employees or any other interested parties. Therefore, the author tried to analyze whether the corporations should make profits by operating with a Corporate Social Responsibility (CSR)perspective. As a result, a corporation's purpose was to maximize returns to its shareholders, so if a corporation operated without a CSR, it could happen to cause damages to any other interested parties, corporation itself and eventually, shareholders. Therefore, a company has its independent entity from its shareholders, and their interests are not attached to each other, the author recommends that it was necessary to establish a corporation’s CSR in Article 1, Paragraph 2, under Company Act of Taiwan. And it should be provided that while a company, when making decision, “may” or “shall” take into account the stakeholders’ interests and even public interests into its decision in addition to maximizing shareholders’ interests.
Furthermore, a company when making decision, “may” or “shall” take into account the stakeholders’ interests and even public interests into its decision in addition to maximizing shareholders’ interests. The author tried to do a research on the issues concerning the protections of other interested parties, including shareholders, creditors and employees under Business Mergers and Acquisitions Law of Taiwan. And there were non-shareholder constituency statutes under American Law, it provided that a corporation shall take the other interested parties’ interests into consideration when operating Mergers and Acquisitions. As a result, the author indicated that it was protection insufficiency of the other interested parties in the course of conducting the merger or acquisition according to the Article 5 of Business Mergers and Acquisitions Act of Taiwan. With respect to the right to claim directors duties, based on the corporate social responsibility, suggests to amend the current Article 5, Paragraph 1 of the Business Merger and Acquisition Act to provide that shareholders shall pursue the company’s interests when handling mergers and acquisitions, instead of the interests of shareholders as a whole.
When operating Mergers and Acquisitions, many kinds of potential conflicts of interest may occur. The major of shareholders could oust the minority shareholders by any means, and the rights of the minority shareholders could be impaired. In this case, the authors focused on two basic shareholders rights: voting rights and appraisal rights. With respect to voting rights, this thesis on the one hand comments on the shareholders avoidance issues arising from Article 18, Paragraph 5 of the Business Merger and Acquisition Act and suggests to replace the ex ante avoidance system by the ex post facto review of fairness of transaction, while on the other hand introduces the materiality judgment principle as provided by domestic scholar to review the necessity to require the merger or acquisition to go through special resolution process in each parties’ shareholders’ meetings under current laws. With respect to appraisal rights, this thesis suggests to remove the requirements that dissenting shareholders shall waive their voting rights to acquire appraisal rights as provided in Article 12 of the current Business Merger and Acquisition Act, and introduces the materiality judgment principle as provided by domestic scholar to review the necessity to design appraisal rights in each mode of merger and acquisition under current laws.
Moreover, when operating Mergers and Acquisitions, potential conflicts of interest may occur between the director of a corporation and creditors or employees; or between shareholders and creditors or employees. With respect to the creditors protection in business mergers and acquisitions, suggests to take reference to the exceptional doctrine to the successor liability in United States. Consequently, the author tried to a research on the necessity of application of successor liability in asset acquisitions under Taiwanese law by comparing with American Law.
Final thesis researches the employees’ protection in business mergers and acquisitions, and focuses on the employers’ right to agree on the continuance of employment. Considering each right and interest of the employer and employee, this paper argues that the employers’ right to the continuance of employment, while the existing general principle under current labour laws, such as the principle of last resorts to termination of employment and the principle of reasonable modification, shall be exercised, accompanied with the shift of burden of proof in litigation, to restrict the employers’ above rights.
In conclusion, the author hopes that the research above could give advice on the balance of business efficiency and social equity and justice under Business Mergers and Acquisitions Act of Taiwan.
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