我國產金分離原則之探討-以金融控股公司為中心

Abstract

我國自力霸集團一案後，於金融監理上確立了產金分離原則之政策，具體落實於法令則分為三個面向：對非金融相關事業轉投資之限制、大股東適格性之審查及負責人兼任之限制。金融控股公司雖同樣就產金分離原則三個面向訂有相關規定，惟在現行法制下，金融控股公司之業務以投資及管理為限，本身並無經營金融業務，且在允許金融控股公司得轉投資創業投資事業之前提下，金融控股公司即可透過旗下創業投資子公司再轉投資並且掌控其他非金融相關事業，此顯然與產金分離原則之立法目的不符。此外，觀察近年來案例可得知金融控股公司大股東衍生之問題日益彰顯，現行卻又面臨無相關法令得以管制之情形，顯然金融控股公司所適用之產金分離原則相關規定實有重新檢討之必要。 因此，本文以我國金融控股公司產金分離原則為中心，探討其相關規範之立法背景、沿革、目的與法規內容。接著藉由比較法之研究，首先從歷史脈絡梳理日本金融制度與產金分離原則之發展，其次分析日本現行與金融控股公司產金分離原則有關之規範與沿革，並闡述日本實務上對於金融集團之監理重點。日本產金分離原則實是涵蓋競爭法及金融業法之領域，且金融控股公司與金融子公司間業務範圍及角色權責均有明確分別，是以在法令上會依照金融控股公司與金融子公司間業務差異而設計寬嚴不同之內容。 最後，借鏡日本法之精神，本文認為現行法下應再檢討創業投資事業之性質，並應將金融控股公司與旗下子公司間之權責及運作模式予以明確化、法制化，且應可依其各別業務內容研擬對於金融控股公司與其他金融業進行差異化規範，期許未來我國金融控股公司無論在內部運作或是金融監理上能更加完善。

After the Rebar Group case, the principle of separation of finance and commerce was established in financial supervision in Taiwan. Its specific implementation in laws and regulations is divided into three aspects: restrictions on reinvestment in non-financial related businesses, review of the eligibility of major shareholders, and restrictions on concurrent positions held by responsible persons. Although financial holding companies also have relevant regulations on the three aspects of the principle of separation of finance and commerce, under the current legal system, the business scope of financial holding companies is limited to investment and management, and they do not engage in financial business themselves. Moreover, under the premise that financial holding companies are allowed to invest in venture capital businesses, financial holding companies can reinvest in and control other non-financial related businesses through their venture capital subsidiaries. This is clearly inconsistent with the legislative purpose of the principle of separation of finance and commerce. Furthermore, recent cases show that the problems arising from major shareholders in financial holding companies have become increasingly prominent, yet there are currently no relevant laws and regulations to regulate them. Obviously, the relevant provisions on the principle of separation of finance and commerce applicable to financial holding companies need to be reviewed. Therefore, this article focuses on the principle of separation of finance and commerce applied to financial holding companies in Taiwan and explores the legislative background, evolution, purpose, and content of related regulations. Then, through comparative legal analysis, this article first examines the historical development of financial system and the principle of separation of finance and commerce in Japan. Secondly, it analyzes the current regulations and their evolution related to the principle of separation of finance and commerce applied to financial holding companies in Japan, and explain the practical focus of supervision of financial groups in Japan. The principle of separation of finance and commerce in Japan encompasses both competition law and financial industry law, and there are clear distinctions in the business scope, roles and responsibilities between financial holding companies and their subsidiaries. Therefore, the laws will be designed with different levels of leniency and strictness based on the business differences between financial holding companies and their subsidiaries. Finally, drawing inspiration from Japanese law, this article argues that the legal characterization of venture capital businesses under current law should be re-examined. The responsibilities and operational models between financial holding companies and their subsidiaries should be clarified and institutionalized. Furthermore, differentiated regulations for financial holding companies and other financial institutions should be developed based on their respective business activities. This is hoped to further improve the internal operations and financial supervision of financial holding companies in Taiwan.