我國證券交易法下有價證券規範之疑義——以臺灣存託憑證、投資契約與連動債為中心

Abstract

特定交易客體究竟是否屬於有價證券，實涉及我國證券交易法適用前提要件是否具備，進而決定行為人是否受證券法規範相繩。而我國證券交易法第6條就有價證券之定義，採取「有限列舉，概括授權」之立法模式，除條文中明文列舉數種證券外，其他法條中未提及者，皆全數交由主管機關核定以納入證券交易法規範範圍。此一立法方式，自本法該法施行以來即引發不少爭議，惟立法者從未對此部分進行大幅修正，主管機關實際核定之類型亦寥寥可數。 近年來，臺灣存託憑證成為實務與學界討論焦點之一，除其本身是否屬證券交易法第6條所定之有價證券之爭議外，亦引發對證券交易法第6條授權主管機關規定是否具授權明確性之疑慮，以及如財政部76年9月12日（76）（二）字第00900號公告中，主管機關所為概括核定之妥適性之相關爭論。 此外，就投資契約而言，我國法並未如美國法將其明文列為有價證券，自證券交易法立法至今，亦僅見兩則公告涉及此類契約：一為財政部76年10月30日台財證（二）字第6934號公告將「華僑或外國人在臺募集資金赴外投資之投資契約」；二為近期行政院金融監督管理委員會為因應新興虛擬金融產品之出現，於108年7月3日發布金管證發字第1080321164號令，將具虛擬性質、流通性且符合「出資人出資、出資於一共同事業或計劃、出資人有獲取利潤之期待、利潤主要取決於發行人或第三人之努力」此投資契約性質者，核定符合特定條件之投資契約為有價證券。然而，投資契約之約定內容多變，僅將部分類型納入證券交易法規範，恐有規範不足之虞。 又，連動債為以債券等固定收益商品為形式發行之複合型商品，其可能與其他具投資風險之金融商品連結，則其自證券交易法之角度下應如何定性，尚存疑義。於2008年時更因著名之雷曼兄弟事件引發諸多爭議，雖後續制定金融消費者保護法與境外結構型商品管理規則，試圖解決此類金融商品之消費糾紛，惟此等規範是否足以取代證券交易法對投資人之保障？實有待商榷。另外，連動債與投資契約之關係為何，是否得將其認定為投資契約而納入我國證券交易法規範，亦為值得探討之議題。 就外國法制而言，以美國法為例，其於聯邦法規之證券法（THE SECURITIES ACT OF 1933） 與證券交易法（THE SECURITIES EXCHANGE ACT OF 1934）中，明文列舉許多類型之證券，就大部分列舉之證券，實務判決上似較無爭議，惟就投資契約此類非典型證券，其各要件之解釋與判斷，衍生許多法院判決討論，故本文亦花費較多篇幅整理美國法院針對投資契約所為之判決。除此之外，美國法院亦發展出其他證券之判斷方式，本文亦將一併介紹之。 本文主要欲探討我國證券交易法中，針對有價證券定義與範圍之規範內容，是否存有缺失？以前所提及之臺灣存託憑證、投資契約與連動債為主軸，整理相關爭議之實務判決內容與學說上之討論。並說明美國法上針對有價證券之規範內容與相關實務判決，嘗試以美國法為借鏡，檢討我國證券交易法法制缺陷，以及實務上就有價證券之認定方式是否存有瑕疵。

Whether a specific subject of transaction qualifies as a security involves a fundamental question of whether the precondition of the Securities and Exchange Act of Taiwan is satisfied, which in turn determines whether a party's conduct is regulated under the Securities and Exchange Act. Article 6 of the Securities and Exchange Act adopts a legislative model of “limited enumeration with general authorization,” under which several types of securities are explicitly listed, while all other unspecified types are left for the competent authority to approve. Since the Securities and Exchange Act has been put into practice, it has led to considerable controversy, yet no major amendments have been made in this regard, and the types of securities designated by the competent authority remain limited. In recent years, Taiwan Depositary Receipt (TDR) has become a focal point of both academic and practical discussions. The major issue is whether TDR falls under the scope of securities in the Securities and Exchange Act of Taiwan, also raising further concerns about the clarity and definiteness of authorization to the competent authority. Also, there are also different opinions upon whether it is appropriate for the competent authority to apply a broad and indefinite concept when approving which subject should become securities under the Securities and Exchange Act, such as that in the Ministry of Finance’s Announcement No. 00900 dated September 12, 1987. As for investment contracts, unlike the law of the United States, the Securities and Exchange Act of Taiwan has not comprehensively recognized them as securities. Since the enactment of the Securities and Exchange Act, there have only been two administrative ordinances that mentioned investment contracts. The first one is issued by the Ministry of Finance’s Announcement No. 6934 dated October 30, 1987, in which it approved the investment contracts established by overseas Chinese or foreigners in order to raise funds in Taiwan for abroad investments, are securities under the Securities and Exchange Act of Taiwan. The second one is the administrative rule No. 1080321164 issued by the Financial Supervisory Commission on July 3, 2019, which approved certain virtual, tradable subjects which pass the examination of the Howey test, are securities under the Securities and Exchange Act of Taiwan. However, the terms of the investment contracts can be diverse, to include only certain types of investment contracts under the Securities and Exchange Act of Taiwan, would definitely raise concerns about the hazard faced by the investors. Structured notes, on the other hand, are component financial instruments issued in the form of bonds or other fixed-income products, and often bind with other risky financial instruments. Due to the complexity of the instruments, it becomes a difficulty in the characterization of the structured notes under the Securities and Exchange Act of Taiwan. In 2008, the Lehman Brothers case had derived debates over such products. Although the Financial Consumer Protection Act and the Regulations Governing Offshore Structured Products were later enacted to solve relevant consumer disputes, these regulations do not necessarily provide sufficient protection for the investors to the degree which is able to replace the Securities and Exchange Act of Taiwan. Moreover, the relationship between structured notes and investment contracts is also a noticeable topic of discussion, to be specific, whether structured notes can be regarded as investment contracts and thus fall under the scope of the Securities and Exchange Act of Taiwan. On the other hand, the Securities Act of 1933 and the Securities Exchange Act of 1934 of the law of the United States, include a wide scope of securities. When it comes to most of the listed securities, there is relatively little dispute in judicial practice. However, investment contracts, as a type of unique investments, have brought numerous legal disputes when applying the four elements of the Howey test. This paper therefore devotes considerable attention to organizing the relevant cases discussing the definition investment contracts. It also introduces other principles applied by the courts of the United States when identifying securities. This paper aims to analysis whether the definition and scope of securities under the Securities and Exchange Act of Taiwan are sufficiently comprehensive and clear. Focusing on Taiwan Depositary Receipts, investment contracts, and structured notes, it organizes relevant judgments and academic discussions. By referencing the regulatory frameworks and cases under the United States Law, the study seeks to find out the deficiencies in the securities regulation of Taiwan, and discuss whether the principles adopted by the courts in Taiwan when determining if a subject is a security is reasonable and appropriate.