眾律國際法律事務所

我國商業組織新制度介紹

The New Framework of Business Associations in Taiwan

眾律國際法律事務所製作 By Zoomlaw Attorneys-at-Law

1. 閉鎖型公司特色介紹

1. Introducing the Characteristics of Close Company in Taiwan

我國立法院於2015年6月15日三讀通過公司法，最主要修正為增修了第13節的閉鎖性股份有限公司，其特色如下所述：

On 15 ^th June, 2015, the amendment to Taiwan Company Act is to establish a new category of closely-held company limited by shares as follows:

閉鎖型公司七大特色
Close Company’s 7 characteristics

出資型態的多樣化diversified investment patterns;

可發行複數特別股possibility to issuing multiple special shares

股東會開會方式及表決權行使大幅簡化to simplify the ways to attend shareholders’ meeting and its voting right;

每半年即可分派盈餘able to make distribution of dividends every half year;

得發行無票面金額股份issuing no par value shares;

股東可決定表決權行使比例（一股多權）Shareholders may decide to exercise its voting rights according to its proportion (general multiple rights)

得私募轉換公司債、附認股權公司債。 May have private placement of convertible corporate bonds or corporate bonds with warrants by a close company

與一般股份有限公司比較
Comparison with general company limited by shares

2. 有限合夥法實務簡介

2. Brief Introduction of the Limited Partnership Act and its Practice

理論架構 Theoretical Framework

有限合夥係以營利為目的，且具有法人格之營運主體，其組成應有一名以上對有限合夥債務負連帶清償責任之普通合夥人，及一名以上就其出資額對有限合夥負責之有限合夥人，有限合夥法第4條、第6條可資參照。

普通合夥人提供創意或技術，是實際經營業務者，對有限合夥的債務負無限責任；有限合夥人提供資金，但不實際參與經營，僅就出資額負有限責任。

The Limited Partnership is a business association for profit-seeking and to have its corporate capacity. There should be more than one general partner having joint and several liabilities with the limited partnership. It is required for one or more limited partner to be responsible up until what he/she contributed. (See the Limited Partnership Act Article 4 and 6 for more details.)

The general partner may provide ideas or technology and is considered as someone who truly participates in its business operation. There is unlimited liability to the general partner for the debt of the limited partnership. On the other hand, limited partner would provide funds but would not get involved in its business operation. The liability is only limited for the contribution of fund he/she put in.

實務架構 Practice Framework

按有限合夥法第8條第1、2項，公司得為有限合夥之普通合夥人。因此，為了規避自然人擔任普通合夥人時應負無限清償責任，未來實務操作上莫不先成立一間有限公司後，再以公司名義擔任普通合夥人。由於有限公司對於債務只負有限清償責任，即可規避自然人擔任普通合夥人時負無限清償責任之風險。 [1]

According to the Limited Partnership Act Article 8, Paragraph 1 and 2, the company can be represented as a general partner of the limited partnership. Therefore, in order to avoid a natural person to bear unlimited liability when he/she was a general partner, in practice, it is common to establish a limited liability company to start with followed by having the company to be represented as a general partner. The reason for this is because for the limited liability company, the liability is only limited; this can prevent the risk of a natural person to bear the unlimited liability of a general partner.

適合之產業 Suitable Industries

政府極力發展之文創產業，是支持立法通過之主因之一。經濟部舉例：「未來若有知名導演想籌拍電影，得以導演、編劇或電影製作人等擔任普通合夥人，找創投投資資金擔任有限合夥人，簽訂契約組成「有限合夥」，約定電影行銷、製作與利益分配，當電影拍完，合夥關係就結束。」

Recently, Taiwanese government puts strong emphasis on its development of culture and creative industries, which is one of the reasons for supporting this bill to be approved by the legislature. The Ministry of Economic Affairs makes example: “In the future if there is any well-known movie director who wishes to conduct a movie, the director, editor or filmmaker may act as the general partner. By finding its venture capital investment as a limited partner, he/she can form a type of “limited partnership”, to make binding agreement in terms of film making, marketing and its distribution of profits. Such partnership relationship would end when its filming ends.

常見之適用產業，除了上述文創產業，或可想見之新創產業外，更重要的是發生在金融體制之私募基金 [2] 。私募基金經理人先成立一家有限責任公司來擔任普通合夥人，為了說服投資人大家利益一致，普通合夥人認股約2%，其他股份由投資人暨有限合夥人出資。基金經理人之利潤來源有二，第一為維持基金正常運作之管理費，通常收取基金出資總額2%；第二為基金投資獲利時之表現費，通常收取基金投資獲利之20%。

Industries in common in this type of structure do not only cover the development of culture and creative industries and the emerging industries, but also the private equity funds, who gather the funding from the financial system. The private equity fund manager would found a limited liability company as a general partner. In order to persuade all investors to have the same interest, general partner would warrant for about 2% shares, other shares would be funded by investors and limited partners. There are two kinds of profit sources for the fund managers. Firstly, in order to maintain the normal operation of the fund management, the management fee would be 2% of the total amount of funds contribution. Secondly, for the profitable investment performance of the fund, there would be 20% of fund’s profits.

國外對於律師事務所、會計師事務所、建築師事務所等以有限合夥型態出現。但是我國有限合夥法是以營利事業為限，與會計師、律師、建築師等以獨資或合夥方式經營事業之專門職業技術人員性質不同，業由經濟部以民國92年4月11日經商字第09200530780號函釋解釋在案，故不得成立有限合夥。

There are limited partnership structures in law firms, accounting firms, architecture firms in some other countries. However, the entities of the limited partnership are only applied to profit-seeking business associations in accordance to the Limited Partnership Act in Taiwan. Such structure is different from those licensed professionals such as accountants, lawyers and architects to run their business as sole proprietorship or partnerships. According to the Ministry of Economic Affairs’ ordinance as of April 11, 2003 (Number 09200530780), limited partnership cannot be established by those professionals.

結論 Conclusion

有限合夥法將對國內投資造成重大改變，私募基金及新創產業投資風潮，即將展開。

The Limited Partnership Act is going to have dramatic change in terms of domestic investment. The trend of private equity and investment in emerging industries is going to begin.