| Summary: |
我國庫藏股制度自89年6月30日經立法院三讀通過證券交易法修正條文後，始得公司得以合法的在公開市場買回公司自家的股票。公司購回庫藏股主要目的在於穩定與維持股票的價格。公司購回庫藏股應經董事會特別決議始得而之，而董事會於會議準備程序中及會議中得知訊息時，即受到證券交易法第一五七條之一第一項內線交易限制之規定，此時如有證券交易法第一五七條之一第一項所述之人，仍於市場上交易時，則該交易行為將產生何種法律效果。而董事會如違反公司違法買回股份時，其買賣行為之效力如何？又股東會是否得決議或限制董事會買回庫藏股。 本文主要係針對公司購回庫藏股時，對庫藏股所衍生的問題，如在何種情形之下可例外取得庫藏股？證券交易法第一五七條之一第一項各款適用本條禁止買入或賣出之人的射程範圍如何？重大消息範圍為何？消息公開之時點及公開方法為何？董事會及證券交易法第一五七條之一第一項各款之人違法交易行為之法律效果如何？違反證券交易法第一五七條之一規定時，其民事及刑事責任為何？作一探討，藉由實務見解及學說論述加以討論及分析，嘗試綜合上述之說明提出淺見，期能對將來法制之修改有所助益。 本文除將介紹公司法之相關理論，例如何謂庫藏股、我國公司法之禁止理由與公司取得之例外及證券交易法規定取得之相關規範，以了解「庫藏股」之來龍去脈。另外，並探討公司合法取得庫藏股之地位，以作為檢討我國法規範是否妥當之基礎外，並針對公司買回股票之方式，討論董事會及股東會相關問題，論述決議瑕疵之法律效果，藉以釐清公司買回庫藏股所應遵守之程式，並整理學者指出現行法可能之缺失，提出個人淺見，嘗試提出解決之道，作為未來修法之建議，以導公司經營於正軌。並討論內線交易之行為主體及行為客體，藉由國外立法予以觀察，從成文法系國家日本如何將不確定法律概念加以詮釋，或從英美法系國家透過司法判例點滴形成的測試基準，加以了解，且就我國現行法的規定相較，以釐清內線交易之構成要件及射程範圍。最後討論內線交易之法律責任，包括民事責任之賠償義務人、請求權人及責任要件及因果關係、討論賠償金額之計算，並說明內線交易行為人之刑事責任，以探討內線交易之法律效果。 Regarding the treasury stock system of Taiwan, ever since Legislative Yuan passed the amended provisions of Securities Exchange Act in three readings on Jun. 30, 2000, companies are able to legally buy back the stocks of their own companies in the open market. The purpose of companies’ buying back their treasury stocks is to stabilize and maintain the price of stocks. Generally speaking, companies’ buying back their treasury stocks has to be especially resolved by the Board of Directors beforehand. Besides, once the Board of Directors has learnt such information in the preparation procedures of a meeting or in a meeting, it is immediately regulated by the Insider Trading Restrictions as stipulated in Item 1 of Article 157-1 of Securities Exchange Act. During this time, if the persons mentioned in Item 1 of Article 157-1 of Securities Exchange Act still undergoes trading in the market, what kind of legal effect shall such trading behavior create? If the Board of Directors violates Company Act and buys back their stocks, what is the effectiveness of the buying and selling behaviors? Should the buying back of treasury stocks by the Board of Directors be resolved or restricted in shareholders’ meeting? Focusing on the companies’ buying back of their treasury stocks, the paper investigates the problems derived from treasury stocks, such as: Under which circumstances can treasury stocks be exceptionally acquired? What is the involvement area of the persons prohibited from buying or selling treasury stocks as stipulated in various subparagraphs of Item 1 of Article 157-1 of Securities Exchange Act? What is the area of important news? What is the timing for publicization of news, and what is the publicization method? What are the legal effects of the illegal trading behaviors done by anybody of the Board of Directors and by the persons mentioned in various subparagraphs of Item 1 of Article 157-1 of Securities Exchange Act? What are the civil and criminal responsibilities when Article 157-1 of Securities Exchange Act is violated? All these problems are discussed and analyzed in the paper according to the viewpoints on the practices and academic theories. The paper attempts to synthesize the above descriptions and give some humble opinions, which are hopefully helpful to the amendments of legal system in future. The paper introduces the related theories of Company Act, such as the definition of treasury stock, the reasons of restriction stipulated in Company Act of Taiwan, the exceptional acquisition area of companies, and the related area of acquisition stipulated in Securities Exchange Act, so as to understand the beginning and subsequent development of “treasury stock.” Besides, the paper investigates the position of companies’ buying back of their treasury stocks in order to review whether the regulations of Taiwan’s acts are under appropriate foundation. Focusing on the ways that companies buy back their treasury stocks, the paper discusses about the related problems of the Board of Directors and the shareholders’ meeting, and makes comments on the legal effects of the resolution flaws, so as to clarify the procedures to be observed when companies buy back their treasury stocks. Meanwhile, the paper rearranges the possible shortcomings of the existing acts indicated by different scholars. In order to lead the operation of companies to the right track, the researcher also gives some humble opinions in the paper, attempting to propose some solutions for the problems and provide some suggestions for future amendment of the related acts. The paper also discusses about the behavioral subject and behavioral object of insider trading, and observes the legislation of insider trading in foreign countries. Discussing from how the countries like Japan which adopts Statute Law, interpret the uncertain legal concepts, or from the test standards of the countries, which employ the British and American Common Law, formed through the details of the judiciary precedents, the paper makes a deeper understanding of related areas, and compare them with the existing legal stipulations of Taiwan in order to clarify the essential components and involvement area of insider trading. Finally, the paper discusses about the legal responsibilities of insider trading, including the compensation obligor bearing civil responsibilities, the persons having the right of claim, the essentials of responsibility, and the cause-effect relationship. The paper discusses about the calculation of compensation amount, and states out the criminal responsibilities of the persons having insider trading behavior in order to investigate the legal effect of insider trading. |