| 摘要: | 本論文目的乃是在於探討公司分割之性質，從而探討公司與利害關係人間權益衡量的問題。利害關係人中有股東、債權人、勞工，而公司應如何調和與其三者的權益，即公司於進行分割所生的程序、時間、費用，是否得有效保護利害關係人權益且是否得以衡平利害關係人之權益。
股東權益的保護，雖得以股東會決議與少數股東收買請求權之方式保護其權益，惟分割計畫不損及股東對經營者之信賴，亦不損及股東法定權益，則應容許公司所踐行的程序受到適當的緩和。
於債權人權益保護，其事前通知程序多已受各國法規範的排除，則我國是否尚有存在的必要；事後對已存在債權人之債權為連帶清償責任之規範，及分割效力是否為绝對無效或相對無效，且侵權行為之債權人保護於我國並無規範，以上問題均有檢討的必要。
勞工權益的檢討，其基準建立在民商法與勞工法上根本的衝突，惟雇用可動性與雇用安定性並非不得以法規範取得平衡，於我國分割法制之勞工權益保護已嚴重傾向於雇主雇用可動性而侵害勞工身分、工作權的保護，為衡平、調和兩者之間的權益，當必須對於整體勞工法制做一整體性的觀察與檢討，從而解決目前勞工於分割計畫中可能遭受的不利益。
藉由以上的考察，得以充分了解我國目前分割法制仍有許多尚待檢討的空間，希冀藉由本論文提供之一隅見解以解決公司與利害關係人間權益的對立，而使兩者間的權益得到調和，從而促進公司最佳利益。
This essay is to study the nature of company division, so as to discuss and study the problem on measuring the rights and interest between company and its interested parties, including shareholder, creditor and labor. How can the company harmonize its relation with the three parties in the aspect of rights and interest? Company division will involve consequent procedure, time and expenses, then whether there will be an effective protection and balance for the interested parties?
As for shareholder’s interest protection, his interest is protected in the way of deciding on shareholders'' conference and buying off the right to petition. If the division plan does not decrease shareholder’s reliance upon the operator, and does not harm shareholder’s legal interest, a proper mitigation should be approved for the procedure the company is doing.
As for creditor’s interest protection, since the pre-notice procedure has been excluded by the laws and regulations of various countries, whether its existence is necessary in our country? There is a regulation that after an event it should be a joint liability for satisfaction to the creditor’s right. Is the efficacy of division in absolute invalidity or in relative invalidity? In our country, there is no regulation on creditor protection, who does infringement act. All the problems above are necessary to be reviewed.
As for the review on labor rights, standard should be based on the fundamental conflict between civil & commercial law and labor law. It is not that employment mobility and employment stability cannot reach balance through laws and regulations, and the labor rights protection of division legal system has seriously inclined to employers’ employment mobility but made inroads on labor status. To balance and harmonize labor rights and employer’s rights, we must make a thorough observation and review on the whole labor laws, so as to solve the problem that labor was in the disadvantageous position in the division plan.
According to the investigation in the above, it fully knows that there are a lot of problems waiting to be reviewed. I hope this essay can help to solve the conflict between company and its interested parties, to harmonize the interest between, and to help the company and its interested parties to gain the best benefit. |
