公司減資法制之研究

The study of corporation's capital reduction

戴銘昇(Dai, Mean-Sun)

實收資本 ； 法定資本 ； 公積 ； 票面金額 ； 庫藏股 ； Stated Capital ； Legal Capital ； Surplus ； Par Value ； Treasury Share

輔仁法學

67期（2024 / 06 / 01）

1 - 91

繁體中文;英文

減資在近年來已成為上市櫃公司常用之手段，而且規模不斷擴大，甚至將股東之股份減至未滿一股，作為驅逐股東及經營權爭奪之手段。已對股東及公司債權人造成極大的影響。而我國之減資法制，部分規定自民國55年至今未曾更動，更顯見有參考其他國家法制修正之必要。在美國法，實收資本及減資制度存廢成為各州公司法立法上少見的重大分歧，許多州已參考模範商業公司法將減資制度廢止，但是我國法最常參考的德拉瓦州及紐約州法均仍保留此制。日本會社法之制度也是比較偏向該二州法，除了將減資制度予以保留外，共同之處是均僅承認所謂的形式減資。反觀我國，近年來實務上不斷衍生的爭議，例如巨幅現金減資、強制銷除股份、畸零股等問題，正是承認實質減資所致，本文建議參考外國法盡速通盤修正減資法制。

Capital reduction has become a familiar tool to the listed companies, and the magnitude is growing bigger and bigger, even caused one shareholder's shareholding became below one share, turning into a scheme of competition for corporate management rights. It has caused shareholders and creditors great influence. There are some articles remain unchanged since 1966 within the capital reduction regime of Taiwan, this shows the urgent need to modify Company Act referring to other nation's statutes. Before 1980, Model Business Corporation Act not only adopted stated capital, earned surplus, capital surplus, but also permitted capital reduction. The capital structures became more complex, because capital raised through the issuing new shares became to be routinely classified as capital surplus rather than stated capital, it caused the economic capital of company is far more than the so-called stated capital. The legal capital structure is no longer able to protect creditors. Therefore, in 1980, Model Business Corporation Act abolished legal capital structure and its related regimes, such as capital reduction, the difference between the categories of every kind of surplus, par value, treasury share. After 1980, the differences between state's Corporation Law legislation regarding stated capital and capital reduction are huge, this situation is quite rare even in America, although many states' Corporation Laws have abolished capital reduction regime following Model Business Corporation Act, but the most important state laws to Taiwan - Delaware General Corporation Law and New York Business Corporation Law - both reserve capital reduction regime. Japanese Company Law also favor the legislation of Delaware General Corporation Law and New York Business Corporation Law, the all preserve the capital reduction regime, and only admit the so-called formal capital reduction. On the contrary, the constant issues arising in Taiwan, such as huge cash capital reduction, compulsory cancellation of shares, fractional shares, these issues are deriving from substantial capital reduction; this article suggests we refer to U.S. and Japanese laws to modify capital reduction regimes thoroughly and as soon as possible.