外匯管理及交易法律機制之研究

Abstract

臺灣為一個貿易依存度頗高之小型開放經濟體，對外貿易佔整體經濟活動相當重要之地位。因此，外匯交易與匯率之變動，對國際貿易有深遠之影響。近年來隨著我國金融自由化與國際化之快速發展，資金在國境間之流進、流出益形頻繁，更突顯外匯管理與交易之重要性。 在大多數國家中，對於外匯之管理，主要由該國之中央銀行負責，其任務不僅在維護對內、對外幣值之穩定，並於必要時調節外匯之供需，以維持有秩序、有效率之外匯市場。而中央銀行對外匯之管理，主要包括外匯資產及外匯業務之管理。 我國因目前並非國際貨幣基金或世界銀行之會員國，故中央銀行對於外匯資產之管理，除參考許多先進國家及國際貨幣組織建立之管理法則外，尚須配合我國國情之特別考量，以期更加審慎穩健；因此，央行除需運用各種投資策略及風險控管方式之外，如何建立健全之外匯資產管理機制及其法律架構，尤有制度及功能之重要性與必要性。 而就外匯業務之管理，自民國九十一年一月我國加入世界貿易組織（WTO）以來，主管機關對外匯業務之管理規範已符合世界貿易組織及國際貨幣基金（IMF）之規範。又同年六月五日修正公布之「中央銀行法」第三十五條規定，增訂銀行以外之其他事業經由中央銀行許可亦得辦理外匯業務，彰顯我國外匯自由化，已進入嶄新之階段。 惟國內對管理機制本身之法律依據、法律架構，及相關法律問題，包括就憲法、金融法，及行政法令等，加以有系統之整理及深入研析者，公開發表之相關論述相對較少。此外，或有因外匯相關主管機關之權責規範不甚明確，致有於機關間孳生爭議之情形；或有因部分法令規定未臻明確周延，以致金融業者遵循、適用時恐有疑義，均屬應予進一步釐清之法律問題。 至外匯交易之法律機制，鑒於外匯交易除固有之進出口貿易相關業務之外，近年許多外匯交易類型，均係由金融業者自國外引進，或自行研究之投資組合型態，其法律關係雖以契約形式呈現，惟權利義務之約款則更為複雜，若未對各該交易之基本民事法律關係有深刻瞭解，則對各該外匯契約法律效力之判斷，乃至外匯交易私法制序之維持，均有所疑慮；對於外匯市場之發展，亦有不利之影響。本文爰針對現行外匯交易之若干主要契約類型及其民事法律關係，與部分似有爭議之定型化約款，試以現行民法及消費者保護法加以研究，期能有助於未來外匯交易私法秩序更臻健全。

As a small and open economy, Taiwan is highly dependent on international trade in the process economic development. Foreign exchange transactions and fluctuation in the exchange rate are crucial to the business of international trade. As the pace of financial liberalization and globalization have been rapidly developing in Taiwan, resulting in faster inflow and outflow of capitals across the border, the regulations on foreign exchange and all its transactions become even more important in Taiwan. Central banks are responsible for the regulations and control of foreign exchange in most countries. Their tasks include to maintain the stability of the internal and external value of the currency , and to take measures to adjust the demand for and supply of foreign exchange, in order to sustain an orderly foreign exchange market. Part of the central bank’s role as a regulator of foreign exchange includes the control and regulation of foreign exchange reserve assets and foreign exchange business. Taiwan is a member of neither the International Monetary Fund (IMF) nor the World Bank. In addition to draw references from other developed countries and the IMF to set up relevant regulations, Central Bank of the Republic of China (Taiwan) also needs to take into accounts situations that are unique to Taiwan. How to establish a sound mechanism and its legal framework on the management of foreign exchange reserve assets, as well as using various investment strategies and risk management skills, are institutionally and functionally important and necessary. As for the administrator in charge of foreign exchange business, the competent authority has revised and adopted all the relevant regulations in conform to the World Trade Organizations and the IMF after Taiwan becomes a WTO Member in January 2002. Furthermore, the Central Bank of the Republic of China (Taiwan) Act, as revised on 5 June 2002, has permitted entities other than banks that have been authorized by the Bank to deal with foreign exchange business. All these demonstrate that Taiwan is moving toward to new stage of foreign exchange liberalization. However, there is a comparative lack of published literature which provide systematic and detail analysis on the legal basis, legal framework and relevant legal issues, including but not limited to the constitution, financial laws and regulations, concerning the control mechanism. In addition, several legal issues remain to be resolved and clarified. Firstly, the lack of a clear authorization of mandates amongst relevant agencies responsible for foreign exchange affairs often results in disputes amongst these agencies. Secondly, relevant laws and regulations are not comprehensive enough to provide guidance for financial institutions to apply and reply on. In addition to the typical form of foreign exchange transactions relating to international trade, financial institutions have been introducing from abroad or designing their own different types of foreign exchange transactions. These new types of foreign exchange transactions are most regulated by private contracts that contain far more complicated legal rights and obligation. Lack of a comprehensive understanding from the perspective of civil code concerning these new types of transactions will affect the determination of legal effects resulting from these contracts, which might have negative impact on maintaining an orderly foreign exchange transactions from the private law perspective. The development of foreign exchange market, moreover, might also be affected. This thesis attempts to conduct detail analysis on various types of foreign exchange transactions contracts, including some of their standards clauses, and their legal rights and obligations from the perspective of civil code and consumer protection law with an aim of maintaining a sound legal order for foreign exchange transactions.