台灣投資市場以散戶居多，控制股東常把持董事會運作，因此容易出現控制股東損害小股東權益之情形。不健全之公司治理是否提供一個管理當局較容易操縱盈餘的環境，並進而導致企業爆發財務危機，即為值得深究之議題。本研究以民國87年6月至91年12月間曾發生財務危機之上市公司為研究樣本，以產業、市值規模及成立年數為條件採1:1配對方式組成控制樣本，探討兩組樣本公司間在盈餘管理幅度、盈餘管理誘因及公司治理變數上之差異及前述因素與財務危機發生之關聯性。 以DeAngelo(1986)模型衡量異常應計項目，實證結果顯示，財務危機公司於危機發生前二年內有進行盈餘管理之現象。此外，危機發生前二年度，有較高比例的危機公司進行現金增資；於危機發生前一年度，危機公司內部人出脫股票的情形亦較正常公司嚴重，顯示管理當局似乎利用美化財務數字，以吸引外部投資者，一旦危機即將爆發則大量抛售手中持股，以獲利了結。 在公司治理議題上，本研究利用La Porta et al. (1999)及Claessen et al.(2000)之最終控制者概念，衡量並分析股權結構和董事會組成特性。實證發現，兩組樣本間之股份控制權、盈餘分配權及其偏離程度並無顯著差異，亦未發現危機公司有較顯著傾向採用金字塔結構或交叉持股來控制被投資公司。兩組樣本之最終控制者參與管理的比例相當，家族控股的型態居五成以上。以最終控制者觀點衡量之董監席次控制權則在兩組樣本上呈現顯著差異，實證分析顯示危機公司之最終控制者實際持股率不高，可享受之盈餘分配率較低，但卻擁有比控制樣本公司更高的董監席次控制權。 此外，本研究更進一步發現，在公司治理不佳、盈餘管理誘因愈強的情況下，企業發生財務危機之可能性較高，顯示公司治理之重要性。 / The Association of Earnings Management and Corporate Governance－on Companies Experiencing Financial Distress Abstract Small shareholders are the majority of the investors in Taiwan capital market. And also that controlling shareholders dominate the operation of board of directors, which might render occasions for controlling shareholders to expropriate easily the interests of the small shareholders. It is worth examining whether weaker corporate governance structure would provide management with cozy environment for earnings manipulation, and firms would therefore be inclined to experience financial distress? A group of firms listed in TSE experienced financial distress over the period of June 1998 to December 2002 and a control sample, using industry, market value and setup years as the matching criteria, compose the sample of this research. Specifically, this research examines the cross-group differences in earnings management and corporate governance, and the impact of the magnitude of earnings management and corporate governance structure on the occurrence of financial distress. Based on the accrual model in DeAngelo (1986), the empirical findings indicate that the management of financially distressed firms manipulates earnings two years earlier before the event day. As compared to the control sample, the financially distressed firms are found to issue more seasonal equity offerings and the insiders sell more of their shares one year prior to the event. It appears that management employs a strategy to manipulate earnings upward two years ahead in order to raise the capital and then cash themselves out before the bad news are disclosed to the market. This research adopts the concept of ultimate controlling shareholders used by La Porta et al. (1999) and Claessens et al. (2000) to analyze the ownership structure and the composition of boards of directors. In general, we find no evidence that there are significant cross-group differences found in voting rights, cash flow right and the deviation from the two. Neither do we find that financially distressed firms are more inclined to adopt the pyramid structures or cross-holdings as means to enhance their influences. However, we find significant cross-group differences in seating rights. The result therefore suggests that with lower share-holding rights and cash flow rights, the ultimate owners of financially distressed firms exercise their influence on major decisions through procuring higher seating rights. In addition, this research finds that the occurrence of financial distress is associated with weaker corporate governance structure and higher magnitude of earnings management.

隨著社會經濟之全球化發展，公司儼然已成為各國經濟活動之核心組織，掌握絕大多數之資源與財富，影響人民之生活至鉅。且隨著公司資金需求之愈趨龐大，股份有限公司乃成為現今主要之公司型態。我國公司法在繼受外國立法例過程中，對於股份有限公司之機關設計採取其分權、制衡之機關分立方式，以股東會為公司最高意思決定機關，董事會為公司業務執行機關，監察人為公司常設監察機關，其目的即在追求經營之效率與避免專權之弊害。然而在公司規模日趨龐大、商業環境瞬息萬變的今日，此種權限分配制度是否仍能夠有效地發揮制衡公司經營者之功能，已日漸受到挑戰與質疑，我國自民國八十七年以來發生一連串撼動企業界及金融界的「地雷股」事件即為最好之警訊。該等上市、上櫃公司之所以發生財務危機，綜觀其原因，除了肇始於外在經濟環境的催化外，其餘多肇因於人謀不臧。其經營者每每利用職務之便，犧牲廣大股東、債權人及利害關係人之權益，以掌控公司資金、財產及人力等資源之便，以圖利自身，導致公司經營發生危機，進而影響到整個金融系統。 針對該等問題，政府乃積極籌思解決之道，並於民國九十年大幅度修正公司法，一方面積極開放，明訂董事會職權、放寬董監選舉之方式、放寬董監資格限制，以尊重公司自治。另一方面有效管理，對於公司內部監控的制度加以適度之強化，以避免公司經營者濫用前述開放後所獲得之權限，而危害公司股東、債權人及利害關係人之權益，例如修訂或增訂董事當然解任之規定、董事缺額強制補選期限、增訂臨時管理人制度、降低股東代表訴訟之門檻等。台灣證券交易所股份有限公司及財團法人中華民國證券櫃檯買賣中心於民國九十一年十月四日共同制定上市、上櫃公司治理實務守則；證券交易所有價證券上市審查準則第九條亦於民國九十一年二月二十二日初次納入獨立董、監事之規定，以期提升企業之營運品質。 惟如何在積極開放下取得有效管理之平衡，實應記取過去企業風暴之教訓，並吸取他國立法經驗以為我國公司法制進一步改造之方向，因此本文乃針對民國八十七年以來所發生重大財務危機並引發社會高度關注之上市、上櫃公司為研究對象，歸納其發生財務危機之原因，並參酌外國法制，探討我國公司內部監控機制之問題，進而提出今後修法之方向與公司組織建構之建議如下： 一、提高董事間之制衡 (一)檢討並嚴格限制關係企業間交叉持股 (二)廢除公司法第二十七條第二項及第三項之規定 (三)廢除董事代理出席董事會制度 (四)全面引進獨立董事制度宜審慎考量 二、強化監察人之獨立性 (一)廢除公司法第二十七條第二項及第三項之規定 (二)檢討現行監察人之選任制度 (三)全面引進獨立監察人制度宜審慎考量 三、加強監察人之專業能力 (一)財報簽證會計師宜改由監察人聘任 (二)公司內部稽核人員宜改由監察人聘任 (三)強制規定公司監察人應通過一定之資格考核 四、引進股東提案制度以增加股東會監控權限 五、改進股東代表訴訟制度以增加少數股東監控權限　 六、強化檢舉制度 七、重建企業倫理 / As social and economic globalization continues to deepen, companies appear to have become the core units for economic activity in country after country, gaining control over the lion’s share of resources and wealth with profound effects on people’s lives. And, with companies’ demands for funds growing ever greater, companies limited by shares are firmly entrenched as the dominant corporate form. Taiwan’s Company Law has repeatedly borrowed from foreign legislative examples. In this process, corporate organs of companies limited by shares have been designed by adopting a decentralized compartmentalized approach, with the shareholders’ meeting as the highest decision-making organ, the board of directors as the organ that executes the business of the company, and the supervisors as the standing supervisory organ; the purpose of this being to seek operational efficiency while avoiding the evils of monopolized power. However, with today’s ever-larger corporations and constantly changing business climate, the idea that this sort of distributed authority system can still provide effective balance for the corporate leadership function is being challenged and questioned more every day. Perhaps the best warning has come from the string of incidents involving “landmine stock” companies that have rocked the corporate and financial communities in Taiwan since 1998. Looking at the overall explanation for why these publicly listed companies encountered financial crises, one sees that some crises were originally catalyzed by the external economic environment, but most originated in the shortcomings of individuals and their plans: the leadership of these companies sacrificed the interests of the shareholding public, creditors and other stakeholders, using their control over their companies’ funds, assets, manpower and other resources to divert them for their own personal profit, leading their companies into crisis and even impacting the entire financial system. The Government has been aggressively addressing these problems and looking for solutions, and in 2001 major amendments to the Company Law were made. On the one hand, the reforms were towards greater openness and flexibility: out of respect for corporate self-governance, the prerogatives of boards were clearly laid out, the methods for electing directors and supervisors were made more flexible than before, and the qualifications for membership less restrictive. On the other hand, they were also aimed at making management more effective, moderately strengthening companies’ internal controls in order to prevent corporate officers from abusing their authority, once their prerogatives were liberalized, thereby harming the interests of shareholders and others stakeholders. For example, the law was revised or amended to provide rules for the certain dismissal of a director and time limits on the mandatory election of directors to fill vacant seats on the board; an amendment on provisional managers was added, and the threshold was lowered for legal action by shareholders’ representatives. On October 4 2002, The Taiwan Stock Exchange Corporation and the GreTai Securities Market (OTC) jointly established a code of practice for corporate governance; and on February 22 2002, Article 9 of “Taiwan Stock Exchange Corporation Regulations for Review of Securities Listings” included for the first time rules providing for independent directors and supervisors, with the expectation that this would raise the quality of business operations. However, if the question is how to achieve balance between effective management and greater flexibility/liberalization, one must truly recall the lessons learned from the scandals of the past and absorb the legislative experience of other countries, then chart a path towards further reforms in Taiwan’s corporate law system. Therefore, this thesis shall take as the object of research the major financial crises that have occurred since 1998 and those public companies that have generated a high degree of concern within the society. It will summarize the reasons why their financial crises happened, refer in detail to other countries’ legal systems, and investigate problem with the corporate internal control system in Taiwan. It will further propose directions for legal reform and suggestions for structuring corporate organizations as follows: 1.Increase checks and balances among directors: a.Analyze and strictly limit transactions and crossholding of shares between related businesses; b.Discard the rules in items 2 and 3, Article 27 of the Company law; c.Discard system whereby one director may choose another as his/her representative at board meetings; and d.Give careful consideration to introducing independent board member system across the board. 2.Strengthen the independence of supervisors: a.Discard the rules in items 2 and 3, Article 27 of the Company Law; b.Analyze the current system for electing supervisors; and c.Give careful consideration to introducing independent supervisors system. 3.Improve the professional capabilities of supervisors: a.Analyze and strictly limit transactions and crossholding of shares between related businesses; b.Make the appointment of accountants to audit financial statements the responsibility of supervisors; and c.Make it a mandatory requirement that supervisors pass a qualifying examination. 4.Introduce a shareholder proposal system to increase shareholders’ control authority. 5.Improve the shareholders’ representative(legal) action system to increase the control authority of minority shareholders. 6.Strengthen system for bringing accusations. 7.Rebuild business ethics.