本研究之第四章，係比較臺灣與美國法制下對董事忠實義務之規範，分別從信託法和美國判例法的角度，來逐一檢視忠實關係之構成要件、其內涵、其之誕生史以及臺灣移殖此法制後之心路歷程。忠實義務在Smith案後相關概念之形成與發展，有關忠實義務之重要判決，依次為1993年的Cede & Co. v. Technicolor Inc.案、1996年In re Caremark代位訴訟案、2006年的In re Walt Disney Co.代位訴訟案以及Stone v.Ritter案；其次，依據德拉瓦州判例法，當股東起訴請求被告董事違反對公司或股東的受託義務時，法院即需對董事之違反受託義務之行為依最嚴格的標準進行司法審查，稱之為「整體公平審查法」(Entire Fairness Review)；爾後，本研究將從1983年Weinberger v. UOP 案以及In re Cox Communications 案等判決，去深入剖析整體公平審查法之起源與演進過程；最後，即運用比較法的方法，來進一步檢視控制股東應如何公平對待少數股東的權利。
;According to the data of this research, family companies in Taiwan account for about 70% of all listed cabinet companies (excluding non-listed companies of family businesses account for more than 90% of all registered companies). The first chapter of this study will serve as a preamble for clarifying the duty of loyalty of the one paragraph of Article 23 of the current company law, which is the dilemma facing the doctrine and court practice after the passage of the two thousand years of legislation. The term duty of loyalty or duty of a fiduciary is the rule of law from the American legal system or we should say that is the common law system. Therefore, it is necessary for this study to sort out the important judgments (Stare decisis) of the United States, and hope to sum up the principles of this law. In addition, if this duty of loyalty can be applied to family-controlled shareholders in Taiwanese SMEs, the minority shareholders will have right to shareholders derivative suit by the company in accordance with Articles 8 (3), 23 (1) and 214 of the Company Law. Will it cause any adverse effects? In the course of this is worth further research. In addition, how to create good governance of family business beforehand, only to avoid the urgency of raising the relevant subrogation lawsuit afterwards, is the atypical case of the family governance of "Datong management rights battle". Promote the model of good family governance beforehand to reduce the chance of legal disputes between minority shareholders and family-controlled shareholders. Finally, this paper puts forward personal recommendations on how future company law in Taiwan will go.
In the second chapter of this study, the first step is to let the readers thoroughly understand the appearance and internal outline of the family business: from the beginning of the family-controlled business to the ownership structure of it, then from the Affiliated Enterprises, Cross-shareholding, interlocking directorate system, reinvest to special purpose entities and a dual-class stock structure to observe complex control and ownership issues in family businesses. In 2018, the company′s legal amendments will broaden the non-public offering, which is stock corporations to issue special voting shares, so in the foreseeable future that how will the minority shareholders′ equity be affected by the issue of special voting shares? Under the circumstance of these issues, this thesis will also observe the members of the board under the family-controlled enterprises and explore the current standards of rule of law of Taiwan and related practical opinions by Financial Supervisory Commission of ROC. This thesis compares the concept of the family companies′ board in theory with the model of the family board under practice. Under this model, controlling shareholders and related corporate groups generate specific issues due to governance, especially in the case of existing corporations with no legal norms, the family affiliated group can finally shape its unique controlling shareholders and minority structure of the interests of shareholders, and finally this study will sort out the essence of the family business legal person from the legal person theory, and advocate that the legal personality of the family business should be denied at the present stage.
In the third chapter of this study, how should family governance and corporate governance be reconciled? Starting from the essence of corporate governance, and then observing from the agency costs of family-controlled corporate members, and also observing from the maximization of the interests of members of the board of a family-controlled corporation and take Taiwan Datong Company as an example, the family governance in the battle for the management rights. In this situation, how can shareholders of non-family members be treated fairly when the family companies are generally controlled by family controlling shareholders? Secondly, this thesis will rethink its impact on the rights of non-family shareholders by the provisions of the 2017 Law Amendment to the provisions of the Voting Rights Agreement for non-listed companies. Finally, using the professional gatekeeper responsibility standard advocated by the recent related company law scholars to think about how to construct accountants, lawyers, securities analysts and other capital market gatekeepers to promote the good governance of family businesses; based on this, this thesis proposes to introduce embedded family office, as the company′s gatekeeper to defend the family business, further regulates the internal and external risk factors of the family business.
The fourth chapter of this study compares the regulation of duty of loyalty to directors under the legal system of Taiwan and the United States. From the perspective of trust law and American case law, it examines the constituent elements of loyalty, its connotation, its originality and how to apply to real cases in Taiwan. After the legal transplant that how to avoid one thing can′t be removed from its environment of origin. The duty of loyalty that is after the case of formation and development of related concepts in the Smith case that is a very important case study on duty of loyalty, then the following cases are Cede & Co in 1993, In re Caremark Case in 1996, the Walt Disney Co in 2006 and the Stone case. Secondly, according to the case law of Delaware state, when the shareholder sues the defendant’s director for breach of the fiduciary duty to the company or the shareholder, the court is required to apply with the most stringent standards, called the “Entire Fairness Review”. Also, the study will be further analyzed from the 1983 Weinberger v. UOP case and the Cox Communications case. The origin and evolution process of the Entire Fairness Review. Finally, comparative legal approaches are used to further examine how controlling shareholders should treat minority shareholders fairly.
The fifth chapter of this study is to review whether the minority shareholders′ private rights relief mechanism is good or bad. Among them, there is a conflict between family-controlling shareholder and minority shareholders due to privatization. This thesis compares the changes in the minority shareholder litigation mechanism before and after the company′s legal amendments in 2018. Then, based on some scholars or researchers recommended that improvement of the minority shareholder′s relief mechanism is based on the issue of Determination of the Value of Claim and Lower the threshold for a representative action. In addition to commenting on the suggestions made by the predecessors, this thesis will attempt to present personal opinions. Under US law, the rule of piercing the corporate veil or disregard the corporate personality. Is there any room for further use after 2018 company law amendment? Traditionally, the US law has uncovered the fact that the corporate veil principle has been applied in practice. For example, when shareholders abuse the corporate personality status, can the principle of shareholder limited liability be “debunked”? However, when it comes to involuntary contract and debtors with the company, it must be "debunked" in the case of exceptions, even if it is a "voluntary creditor," it must be piercing the corporate veil. It is worth mentioning that in the Laya case in 1986, the court first determined 19 factors that judge whether the controlling shareholders abused their "controlling power". It is very useful for the Taiwan court to apply that rule based on piercing the corporate veil in the future. Invoking the precedent of this judgment, finally but not least, this thesis will conduct a feasibility analysis on the principle of reversing piercing the corporate veil and put forward the insight of this thesis.
The sixth chapter of this study is the conclusion and the proposal for the company law amendment. It will be through the opening announcement from Datong Company to the public shareholders. To think about how the relevant provisions of the company law will be amended in the future to avoid directors of the family-controlled business to abusing the controlling power for the purpose of protecting the minority shareholders′ right.