Capital and Distribution in the Intersection of Accounting Standards and Corporate Law─Focus on Corporation Limited by Shares

• Main Authors: Shu-Hung Chiu, 邱舒虹
• Other Authors: 蔡英欣
• Format: Others
• Language: zh-TW
• Published: 2018
• Online Access: http://ndltd.ncl.edu.tw/handle/x3576h

碩士 === 國立臺灣大學 === 法律學研究所 === 106 === Distribution regulation is important for harmonizing the conflicts of interests between the creditor and shareholder. That is, distribution under mandatory statutory such as company act draws a line between ”non-distributable capital” and “distributable funds” in the balance sheet of a company, which serves as devices and standards aiming at preventing corporation from excessively distribution to shareholders. Therefore, there are different tests examining whether to make distribution or not and putting limitation on distributable funds among the foreign regulations. It’s crucial regarding the choice between the regime to ensure its achievement of the stated object of creditor protection, depending on how we make an overall review on the essence of distribution regime and its connection to financial statements of a business. According to article 235 and 241 of Taiwan’s company act, distribution regime can be seen in forms of “distribution of divedend” and “distribution of legal reserve and the capital reserve”, as well as “interim dividend” introduced by article 228-1of new company act amended in 2018.These limitations set out for different sources in corporation are mainly based on paid-in capital and supported by legal reserves, protecting creditor’s interests from undue or excessive distribution of coporate assets. However, due to the inconsistency in definition of capital between company act and accounting, distribution regime in Taiwan fails to portray the value and financial statement of a firm accurately. Also, distribution regime sunder separate regulations result in a lack of consistency systematically.Therefore, this thesis attemps to start from the definition of capital and reach convergence, in order to reconstruct and improve effectiviness of distribution regulation. 　　As the observation of foreign regulation, this thesis chose the Japanese act and EU regulation. Regarding Japanese act, it focuses on its newly established company act in 2005. Under the deregulation of legal capital, there is urgent need to enhance alternative approach to creditor protection including the pratical changes in distribution regimes. In this regard, Japanese company act sets limitation of unified financial resources on earning distribution, share repurchases or buybacks, interim dividend and substantial capital reduction with other ways associated with outflows of corporate assets. Regarding EU regulation, the regulator focuses on the choice of tests used in decision of dividend, and examine balance sheet test under second directive.Through the above analysis, they can combine the merits of balance sheet test and solvency test, and construct a distribution regime that has both certainty and flexibility. 　　The thesis suggests that the act enhance distribution regime in the future from three perspectives: “future oriented”, “unified financial resources restriction”and “liquidity”, and reconcile existing accounting standards with the current regulation of capital and distribution. Therefore, it makes the distribution regime closer to coporate financial statement to improve effectiviness in creditor protection.