國際金融監理軟法與瞭解備忘錄(MOU)之研究

Abstract

為因應全球化下的金融系統風險，國際社會以G20及FSB為首，協調統合諸多國際金融監理組織，形成各國金融監理者組成之「跨政府網絡」。此種由各國金融監理者直接組成之網絡，有別於傳統國際組織，以不具法律拘束力之「軟法」，進行跨國之金融監理合作。本文先從跨國金融監理規範的「軟法」性質切入，探討金融監理機關進行跨境合作時經常仰賴的金融監理瞭解備忘錄（即MOU）之意義、內容、法律性質為何。其次提出金融監理MOU 對我國金融監理機關與司法機關在跨境案件之調查上可能帶來之助益。最後論述在全球化潮流下，我國廣泛簽署MOU 擴大國際參與，我國內國法制應如何配套因應。其中，相關法律內容的建構，以及主管機關依據金融監理MOU自外國取得之資料應如何利用、評價的問題，是本文的討論重點。

Global governance in the field of international financial regulation is dominated by “networks” and “soft law.” Networks of financial regulators worldwide, such as FSB, BCBS, or IOSCO, form the backbone of modern day efforts in harmonizing international financial legal norms and facilitating cross-border information exchange. These “transgovernmental networks” are distinct from international organizations in terms of their organizational form, composition, and the way they operate. One major characteristic is that they achieve regulatory ends through a set of legally non-binding norms called “soft law.” Though international financial soft law has no binding legal force, it is widely used as the main instrument for coordinating efforts in regulating global financial markets. Memoranda of Understanding, hereinafter MOUs, are a type of international financial soft law instrument commonly used for the purpose of exchanging cross-border financial information. This thesis intends to explore MOUs in terms of their contents, legal form, and effects. In addition, as in recent years the Taiwanese government actively engaged in signing MOUs with its foreign counterparts, this thesis also explores how MOUs would be beneficial in enhancing Taiwanese regulators’ capacity in handling cross-border cases, specifically focusing on combating financial crimes committed via offshore companies. This thesis proposes guidance as to how information obtained via MOUs should be evaluated, as compared with evidence obtained through formal international legal assistance. And finally, this thesis points out rooms for improvement in Taiwanese domestic laws relating to MOUs.