臺灣金融機構負責人命令解職之實證研究－兼論英國法之比較

Abstract

金融機構具有高度公共性,其經營不善將產生鉅額社會成本,我國主管機關為健全金融機構業務之經營，保障投資人權益，於監理制度上，對金融機構負責人資格採取管制措施，並對於未具適格性之負責人訂有解職規定，惟該解職規定之行使將影響人民工作權之保障及公司自治原則，因此，本文乃欲從實務案例探討現行主管機關對金融機構負責人為命令解職之規定是否適當，以促進我國金融監理法制之完善。 本文以主管機關實務上執行解除負責人職務之案例為基礎，透過實證研究，瞭解及整理我國主管機關解除負責人之法令依據、解職之事由、解除之職務及解職後續之救濟結果等，另並探究英國法之規定，俾與我國制度作一比較。 經本文研究結果發現，我國法規定確有不周全之處，例如對於金融機構負責人消極資格條件中有關概括事由之不明確性。法規除明定具體之事由外，亦授權主管機關得依職權認定金融機構負責人是否具有其他不誠信或不正當之情事，而為解職之處分，是該概括事由之不明確性，及其未明定解職之期間，均有增加負責人無預見性之負擔。 雖然金融機構與他營利法人相同，皆以從事商業交易之方式追求利益，惟金融機構具有強烈公共性，其影響層面較其他單純營利之法人廣泛，故主管機關依金融法令監督與管理金融機構時，必須以更嚴謹之態度及方法為之，以防止金融弊端之發生。

Due to the highly public nature of financial institutions, any unsound management would lead to huge social cost. In order to maintain the soundness of operation of financial institutions, as well as protection of investors’ rights and interests, the regulatory authority in Taiwan imposes relative qualification requirements on the responsible persons whose qualifications are inconsistent with the supervisory regulations and thus are required to be dismissed. However, such dismissal regulations would affect not only the protection of those unqualified responsible persons’ civil rights to work, but the principle of corporate governance. This paper adopts case studies methodology to explore whether the dismissal of responsible persons enforced by the regulatory authority is appropriate, with a view to enhance the soundness of Taiwanese legal system of financial supervision. Based on the cases studies of dismissals of unqualified responsible persons performed by the regulatory authority, this paper, through empirical research, collects and analyzes the legal basis and reasons for dismissals of unqualified responsible persons, as well as which positions are dismissed, and the results of sequential administrative remedies after the dismissals. In addition, this paper also explores the similar provisions of UK law in comparison with those of Taiwanese law. This paper finds that, to conclude, the criteria and regulations implemented by Taiwanese supervisory authority is unsound. For example, the “general clause”, one of the negative elements that will dismiss the responsible persons of financial institutions, is ambiguous. According to the supervisory regulations, responsible persons will be dismissed, if their qualifications are inconsistent with not only the specific clauses, but also the “general clause”, where the regulatory authority is authorized to identify whether responsible persons have engaged in, or been involved in other dishonest or improper activities. Beside such uncertain general clause, indefinite period of dismissal also causes responsible persons to suffer more unpredictable burden. Financial institutions, just like other profit organizations, conduct commercial transactions to pursue profits. However, financial institutions have a strong public nature, so their influence is wider than other profit organizations. Therefore, the regulatory authority, according to financial regulations and laws, should supervise and administrate financial institutions with more serious attitudes and methods to prevent financial fraud.