論產金分離與我國金融機構之公司治理

Abstract

金管會自2007年力霸集團弊案發生後，即確立產金分離為我國金融監理政策，近來亦積極推動多項改革措施，甚至以產金分離為由駁回產業投資金融業之申請案。雖然我國金融法規已就金融業大股東適格性、金融業投資產業以及產業與金融業之董事長及總經理相互兼任進行規範，惟產業與金融業仍能透過其他方式成為關係企業，達到實質產金混合的效果。以我國金控與銀行為例，其大股東多以一集團同時經營金融業與產業，兩者在股權結構上呈現類似兄弟公司之關係。 本文分析美國與德國之產金分離法制後，發現產金分離並非金融監理之鐵律，而應由各國主管機關依其國家之經濟及市場特性，制定合適的產金分離或產金混合政策。基於我國產金分離政策係以防免利益輸送為目的，且考量我國金融機構之股權結構特性，本文建議應強化關係人交易規範，並保留產業成為金融業大股東之可能性，以建立公司控制權市場、改善少數控制股東結構及引進市場監督力量，藉此提升我國金融機構之公司治理。本文並進一步檢討現行產金分離相關規範，同時提出產金混合下之配套措施，以期為我國產金分離政策提出不一樣的觀點。

The Financial Supervisory Commission in Taiwan (“FSC”) has established the separation of commerce and finance since the Rebar case in 2007 and are pushing for reforms recently. FSC even rejected a commercial firm’s application for the investment in a financial holding on the ground of the separation of commerce and finance. Although regulations of the suitability of shareholders of financial institutions, the investment of financial institutions in commercial firms, and the interlock between the chairperson or the chief executive offficer of commercial firms and that of financial institutions are in place, commercial firms can still find ways to affiliate with financial institutions, which leads to the unseparation of commerce and finance. Taking financial holdings or banks as the instance, their controlling shareholder often runs financial firms and commercial firms as business group, which makes financial firms and commercial firms virtually fellow subsidiaries. After reviewing the regulations related to the separation of commerce and finance in the U.S. and Germany, this thesis finds that the separation of commerce and finance is not an iron rule under financial regulations. Instead, state competent authorities decide whether to adopt the separation or unseparation between commerce and finance based on the economy and market features of its state. In light of the policy objective to prevent tunneling and the ownership structure of financial institutions in Taiwan, this thesis suggests that Taiwan should instead enhance the regulation of related-party transactions and allow commercial firms to become controlling shareholders of financial instituions. By doing so, Taiwan may develop a market for corporate control in the financial industry, alleviate the disadvantages of the minority controller shareholding structure, introduce the supervisory function into the board of directors, and ultimately improve the corporate governance of financial institutions in Taiwan. This thesis further reviews current regulations regarding the separation of commerce and finance in Taiwan and proposes supplementary measures under the unseparation of commerce and finance as proposed in this thesis. It is anticipated that this thesis may provide a different perspective for the separation of commerce and finance in Taiwan.