資本三原則之檢討-英國法與我國法之比較
Date Issued
2004
Date
2004
Author(s)
DOI
922414H002047
Abstract
The three legal capital doctrines have been deeply rooted in the Company Law.
However, facing the dramatic change of the capital market, a call for an overhaul of
the doctrines becomes a hot issue. For example, due to the recession ,the stock prices
of some companies have dropped below their par value. According to the Company
Law, a company is prohibited from issuing shares at discount. This made those
companies encounter the great difficulties of raising capital. As a result of this, the
capital expenditure and economic growth are hurt naturally. Applying for bank’s loans
is uneasy either. Therefore, it is suggested that the relevant provision of the Company
Law should be amended. Based on this argument, the amendment of the Company
Law promulgated in November 2001 inserts a proviso to the principle, permitting
public companies, authorized by the securities relevant competent authority, to issue
shares at discount. Nonetheless, if the maintenance of capital is intended to protect
corporate creditors, it is entirely illogical to lift the burden on public companies due to
the fact that they have more creditors than non-public companies.
The sources for redemption of specific shares are restricted to two means: one is
the earnings surplus; the other is the proceeds of a fresh issue of shares. In fact, the
redemption of specific shares, the distribution of dividends and the re-purchase of
corporate own stocks share same characteristics. All of them are relating to the idea of
distributing corporate assets. Our current rules are conservative. Some different
approaches, such as focusing on the relationship between cash flow, might be
considered in the future.
Both the maintenance of capital and the compromised authorized share capital
have the same problem, i.e., the means of capital. Cash is the best and clearest mean
among all choices. Nonetheless, other money’ worth, goodwill, technical know-how,
monetary credit extended to the company all become possible after the amendment.
The next issue will be how to assure the correct or reasonable evaluation of these
contributions to prevent watering shares.
Looking into the British company law legislation, the three legal capital
doctrines are not brought about by her needs, but rather from the obligation of
implementing European company law Directive, specifically the Second Company
Law Directive. This made British system similar to our legal system; some common
rules and some discrepancy make this project very interesting. This project at the end
proposes some changes to our current company legislation and demonstrate the highly
importance of comparative law.
Subjects
The three legal capital doctrines
compromised authorized share capital
the
maintenance of capital
maintenance of capital
the increase or reduction of capital
special share
subscribed
share capital
share capital
par-value
treasury stock
the reduction of capital
creditor
shareholder
SDGs
Publisher
臺北市：國立臺灣大學法律學系暨研究所
Type
report
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