第三章 外國法制之介紹
第一節 美國
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第三章 外國法制之介紹
由於採無面額或低面額股票制度有其優勢，在越來越多國家採行 下，似乎已經成為大勢所趨173。以下分述美國、英國、德國、香港及新 加坡採用無面額股及超低面額股制度之經驗，以供我國法制修法參考。
第一節 美國
美國早期只能發行面額股票，無面額股則起源於19 世紀初，當時 法律界認為票面金額僅代表股東最初投資金額，未具其他意義，股票真 正價值係取決於公司資產及其獲利情形，且於公司溢價行情況下，面額 甚至亦無法代表最初投資額，更無法反應股票真實價值，因而發起一連 串股票無面額化之運動。嗣經多次修正，無面額股制度始於1912 年之 紐約州公司法通過實施174，如今，幾乎所有之州公司法均允許公司發行 無面額股175。
然，茲因低面額股有助於減輕賦稅，從而實務上多數美國公司採用 面額股，且係面額極低的低面額股(nominal par)176，無面額股始終未成 主流177。包括許多在證券交易所上市的公司，例如著名的蘋果公司每股 面額為0.00001 美元178、臉書則採每股面額0.000006 美元179，GOOGLE 之面額為0.001 美元/股180。
173 陳永吉，同前註 77，(最後瀏覽日：2016 年 5 月 13 日)。
174 William W. Cook, Stock Without Par Value, American Bar Association Journal, Vol. 7, No. 10 (OCTOBER, 1921), at 534.
175 劉連煜，同前註 26，頁 12。
176 方嘉麟，同前註 25，頁 9。
177 See Robert W. Hamiltion, supra note 17, at 177.
178 APPLE INC., FORM 8-K, CURRENT REPORT, UNITED STATES SECURITIES AND EXCHANGE COMMISSION, June 6, 2014, http://investor.apple.com/secfiling.cfm?filingid=1193125-14-228798&cik=320193(last visited on January 14, 2017)
179 Facebook, Inc. FORM 8-A, UNITED STATES SECURITIES AND EXCHANGE COMMISSION, https://www.sec.gov/Archives/edgar/data/1326801/000119312512230161/d350836d8a12b.htm(last visited on January 14, 2017)
180Google, Form 10-K , UNITED STATES SECURITIES AND EXCHANGE COMMISSION, December 31, 2014, https://www.sec.gov/Archives/edgar/data/1288776/000128877615000008/goog2014123110-k.htm (last visited on April 19, 2016)
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依 照 模 範 商 業 公 司 法(Model Business Corporation Act, 下 稱 MBCA)181第2.02 條(b)(2)(Ⅳ)被授權發行之面額股票與各種類股票，僅 列為公司章程中「得」記載事項182，第 6.25 條(b)規定183，股份憑證之 格式及內容所必須記載於票面之事項，未對股票面額設有規定；另第 6.01 條(a)規定，公司章程必須提出公司被授權發行之股份種類及每種 類股份之發行數目184，並未將股票面額列入。
而 德 拉 瓦 州 公 司 法185 (Delaware General Corporation Law, 下 稱 DGCL)第 102 條(a)(4)關於公司章程應記載事項中，規定若公司僅被授 權發行一種股票時，發行面額股時應記載股份總數及面額，無面額股時 應記載股份總數。若公司被授權發行一種以上股票時，公司章程應提出 公司有權發行之所有種類股票總數，及有權發行之每一種類股票總數，
並應具體指出每一種類股票為無面額股或面額股，為面額股時該種股 票之面額。此外，該州第 151 條(a)亦直接規定，公司得發行一或一以 上種類股票，包含面額股或無面額股等186。
181 以下所引模範公司法之條文，參閱美國模範公司法 2007 年修正第四版(MODEL BUSINESS CORPORATION ACT, MBCA ), American Bar Association , Fourth Edition 2007.
182 MBCA §2.02(b) The articles of incorporation may set forth: …… (iv)a par value for authorized shares or classes of shares.
183 第 6.25 條規定，發行公司名稱及其所依據成立之該州法律、受發行之之名稱、股份憑證所代表 之股份種類與數額，為股份憑證之內容所必須記載於票面事項。原文如下：§6.25(b)At a minimum each share certificate must state on its face: (1)the name of the issuing corporation and that it is organized under the law of this state;(2)the name of the person to whom issued; and (3) the number and class of shares and the designation of the series, if any, the certificate represents.
184 MBCA §6.01(a)The articles of incorporation must set forth any classes of shares and series of shares within a class, and the number of shares of each class and series, that the corporation is authorized to issue.…
185 以下所引德拉瓦州公司法 GENERAL CORPORATION LAW,簡稱 DGCL)條文,參德拉瓦州政府網 站 , Title 8 Corporations, Chapter1 GENERAL CORPORATION LAW, October 6, 2016, http://delcode.delaware.gov/title8/c001/index.shtml(最後瀏覽日：2017/1/14)
186 DGCL §151. Every corporation may issue 1 or more classes of stock or 1 or more series of stock within any class thereof, any or all of which classes may be of stock with par value or stock without par value….
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188 MBCA §6.21 Issuance of shares, (c) Before the corporation issues shares, the board of directors must determine that the consideration received or to be received for shares to be issued is adequate.…
189 Model Business Corporation Act –with Comments (Fourth Edition 2007) , American Bar Association, at 106. “Since shares need not have a par value, under section 6.21 there is no minimum price at which specific shares must be issued.”
190 Model Business Corporation Act –with Comments (Fourth Edition 2007) , American Bar Association at 106. “Practitioners and legal scholars have long recognized that the statutory structure embodying “par value” and “legal capital” concepts is not only complex and confusing but also fails to serve the original purpose of protecting creditors and senior security holders from payments to junior security holders.”
191 Model Business Corporation Act –with Comments (Fourth Edition 2007) , American Bar Association at 107 : “ Since shares need not have a par value, under section 6.21 there is no minimum price at which specific shares must be issued and therefore there can be no “watered stock” liability for issuing shares below an arbitrarily fixed price.The price at which shares are issued is primarily a matter of concern to other shareholders whose interests may be diluted if shares are issued at unreasonably low prices or for overvalued property. This problem of equality of treatment essentially involves honest and fair judgments by directors and cannot be effectively addressed by an arbitrary doctrine establishing a minimum price for shares such as “par value” provided under older statutes.”.
192 Model Business Corporation Act –with Comments (Fourth Edition 2007) , American Bar Association at 107: “Protection of shareholders against abuse of the power granted to the board of directors to determine that shares should be issued for intangible property or benefits is provided by the requirements of section 8.30 applicable to a determination that the consideration received for shares is adequate.”
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intangible property)、或公司之任何利益(any benefit to the corporation)或 以上方式之組合。除非存在「確實詐欺」（actual fraud）之情事，股東 consideration, having a value not less than the par value thereof, as determined from time to time by the board of directors, or by the stockholders if the certificate of incorporation so provides.194 DGCL §153 Consideration for stock. (b) Shares of stock without par value may be issued for such consideration as is determined from time to time by the board of directors, or by the stockholders if the certificate of incorporation so provides.
195 DGCL §152 Issuance of stock; lawful consideration; fully paid stock. The consideration, as determined pursuant to §153(a) and (b) of this title, for subscriptions to, or the purchase of, the capital stock to be issued by a corporation shall be paid in such form and in such manner as the board of directors shall determine….
In the absence of actual fraud in the transaction, the judgment of the directors as to the value of such consideration shall be conclusive. The capital stock so issued shall be deemed to be fully paid and nonassessable stock upon receipt by the corporation of such consideration; provided, however, nothing contained herein shall prevent the board of directors from issuing partly paid shares under § 156 of this title.
196 DGCL §162 Liability of stockholder or subscriber for stock not paid in full.
(a) When the whole of the consideration payable for shares of a corporation has not been paid in, and the assets shall be insufficient to satisfy the claims of its creditors, each holder of or subscriber for such shares shall be bound to pay on each share held or subscribed for by such holder or subscriber the sum necessary to complete the amount of the unpaid balance of the consideration for which such shares were issued or are to be issued by the corporation.
197 DGCL §154 Determination of amount of capital; capital, surplus and net assets defined.
Any corporation may, by resolution of its board of directors, determine that only a part of the consideration which shall be received by the corporation for any of the shares of its capital stock which it shall issue from time to time shall be capital;…In each such case the board of directors shall specify in dollars the part of
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such consideration which shall be capital. If the board of directors shall not have determined (1) at the time of issue of any shares of the capital stock of the corporation issued for cash or (2) within 60 days after the issue of any shares of the capital stock of the corporation issued for consideration other than cash what part of the consideration for such shares shall be capital, the capital of the corporation in respect of such shares shall be an amount equal to the aggregate par value of such shares having a par value, plus the amount of the consideration for such shares without par value. The amount of the consideration so determined to be capital in respect of any shares without par value shall be the stated capital of such shares.
198 DGCL §154 Determination of amount of capital; capital, surplus and net assets defined: “Any corporation may, by resolution of its board of directors, determine that only apart of the consideration which shall be received by the corporation for any of the shares of its capital stock which it shall issue from time to time shall be capital; but, in case any of the shares issued shall be shares having a par value, the amount of the part of such consideration so determined to be capitalshall be in excess of the aggregate par value of the shares issued for such consideration having a par value, unless all the shares issued shall be shares having a par value, in which case the amount of thepart of such consideration so determined to be capital need be only equal to the aggregate par value ofsuch shares.”
199 DGCL §242 Amendment of certificate of incorporation after receipt of payment for stock; nonstock corporations.:“(a) After a corporation has received payment for any of its capital stock, or after a nonstock corporation has members, it may amend its certificate of incorporation, from time to time, in any and as many respects as may be desired, so long as its certificate of incorporation as amended would contain only such provisions as it would be lawful and proper to insert in an original certificate of incorporation filed at the time of the filing of the amendment; and, if a change in stock or the rights of stockholders, or an exchange, reclassification, subdivision, combination or cancellation of stock or rights of stockholders is to be made, such provisions as may be necessary to effect such change, exchange, reclassification, subdivision, combination or cancellation. In particular, and without limitation upon such general power of amendment, a corporation may amend its certificate of incorporation, from time to time, so as: (3) To increase or decrease its authorized capital stock or to reclassify the same, by changing the number, par value, designations, preferences, or relative, participating, optional, or other special rights of the shares, or the qualifications, limitations or restrictions of such rights, or by changing shares with par value into shares without par value, or shares without par value into shares with par value either with or without increasing or decreasing the number of shares, or by subdividing or combining the outstanding shares of any class or series of a class of shares into a greater or lesser number of outstanding shares.”
200 DGCL §242 Amendment of certificate of incorporation after receipt of payment for stock; nonstock corporations.:“ (b) Every amendment authorized by subsection (a) of this section shall be made and effected in the following manner:(1)If the corporation has capital stock, its board of directors shall adopt a resolution setting forth the amendment proposed, declaring its advisability, and either calling a special meeting of the stockholders entitled to vote in respect thereof for the consideration of such amendment or directing that the amendment proposed be considered at the next annual meeting of the stockholders”
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付公平價值(pay in cash the fair value of fractions of a share)買回該股份202。
201 DGCL §155 155 Fractions of shares: “A corporation may, but shall not be required to, issue fractions of a share. If it does not issue fractions of a share, it shall (1) arrange for the disposition of fractional interests by those entitled thereto, (2) pay in cash the fair value of fractions of a share as of the time when those entitled to receive such fractions are determined or (3) issue scrip or warrants in registered form (either represented by a certificate or uncertificated) or in bearer form (represented by a certificate) which shall entitle the holder to receive a full share upon the surrender of such scrip or warrants aggregating a full share.”
202 公司法全盤修正修法委員會，同前註 7，頁 1-105。
203 MBCA §6.04. FRACTIONAL SHARES :“(a) A corporation may:(1) issue fractions of a share or pay in money the value of fractions of a share; (2) arrange for disposition of fractional shares by the shareholders; (3) issue scrip in registered or bearer form entitling the holder to receive a full share upon surrendering enough scrip to equal a full share.”
204 MBCA §13.02.RIGHT TO APPRAISAL: “A shareholder is entitled to appraisal rights, and to obtain payment of the fair value of that shareholder’s shares, in the event of any of the following corporate actions:
(4) an amendment of the articles of incorporation with respect to a class or series of shares that reduces the number of shares of a class or series owned by the shareholder to a fraction of a share if the corporation has the obligation or right to repurchase the fractional share so created.”
205 Model Business Corporation Act –with Comments (Fourth Edition 2007) , American Bar Association at 413:“The premise of the market out is that the market must be liquid and the valuation assigned to the relevant shares must be “reliable.” Section 13.02(b)(1) is designed to assure liquidity. For purposes of these provisions, section 13.02(b)(4) is designed to assure reliability by recognizing that the market price of, or consideration for, shares of a corporation that proposes to engage in a section 13.02(a) transaction may be subject to influences where a corporation’s management, controlling shareholders or directors have conflicting interests that could, if not dealt with appropriately, adversely affect the consideration that otherwise could have been expected. Section 13.02(b)(4) thus provides that the market out will not apply in those instances where the transaction constitutes an interested transaction.”
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德拉瓦州公司法第 170 條(a)即規定，公司董事得決議以公積分配 股利，無公積時，可由決議分配股利時，該期會計年度之淨利分配股利，
或以前期會計年度之淨利分配206。
德拉瓦州公司法第173 條規定，公司得依法律規定分配現金股利、
財產股利或股票股利。若以未發行之股票分配股利，於分配面額股時，
董事會決議撥充資本之金額應不得低於分配股份之總面額；於分配無 面額股時，則由董事會決議撥充數額。若公司為股票分割時，則無以上 撥充資本之要求207。
206 DGCL §170(a) The directors of every corporation,…may declare and pay dividends upon the shares of its capital stock,…either (1) out of its surplus,…or (2)in case there shall be no such surplus, out of its net profits for the fiscal year in which the dividend is declared and/or the preceding fiscal year.
207 DGCL §173 Declaration and payment of dividends: “No corporation shall pay dividends except in accordance with this chapter. Dividends may be paid in cash, in property, or in shares of the corporation's capital stock. If the dividend is to be paid in shares of the corporation's theretofore unissued capital stock the board of directors shall, by resolution, direct that there be designated as capital in respect of such shares an amount which is not less than the aggregate par value of par value shares being declared as a dividend
207 DGCL §173 Declaration and payment of dividends: “No corporation shall pay dividends except in accordance with this chapter. Dividends may be paid in cash, in property, or in shares of the corporation's capital stock. If the dividend is to be paid in shares of the corporation's theretofore unissued capital stock the board of directors shall, by resolution, direct that there be designated as capital in respect of such shares an amount which is not less than the aggregate par value of par value shares being declared as a dividend