論權益交換與大股東持股揭露問題 (Equity Swaps and Disclosure of Shareholding of Major Shareholders)

權益交換係連結至股票或股票指數之衍生性金融商品，於理論上可能導致股東之經濟上利益與股票所有權分離之結果，亦已被市場參與者使用作為爭奪公司經營權之策略之一，而衍生出權益交換之部位是否應依證券法第43條之1申報之問題。本文以為，我國現行法之規定，可應包括權益交換下相對人有採取以實際持有股票避險之情形，但若相對人未採持有實體股票作為避險時，則可能有漏洞，因此證券交易法第43條之1之揭露制度有必要因應權益交換之存在予以改進，以增進法律明確性並避免將來法律漏洞。Equity swaps are derivative instruments linking to the performance of stocks or stock indices. In theory, equity swaps would result in the separation of economic interests of shareholders from their stock ownership. Equity swaps have also been used as a weapon in a battle for corporate control in other countries. Thus, the subsequent question is whether a party to an equity swap must disclose his swap positions pursuant to article 43-1 of the Securities Exchange Act if the amount of shares linked in the swap has passed a certain threshold. This paper argues that current disclosure rules under Taiwan law may cover circumstances where the swap counterparty holds physical shares as a hedge against his exposure to the equity swap. However, there might be a loophole if the counterparty does not hold the shares while the other party employs equity swaps to contend for corporate control. Thus, this paper argues that there is room to improve for the disclosure regime under article 43-6 in order to promote legal certainty and close down loopholes