替代性風險移轉之法律與監理議題之探討－以財務再保險與巨災債券為討論重心

Legal and Regulatory IssuesResulting from Alternative RiskTransfer-Focus Attention on Financial Reinsurance and CAT-Bonds

林昭志(Chao-Chih Lin)

《高大法學論叢》 7卷1期 (2011/09) Pp. 157-208

https://doi.org/10.29887/NUKLJ.201109.0004

摘要

若無適當的監理，保險人極易濫用財務再保險來粉飾其財務狀況，如何在自由化之保險交易下維護保險市場之紀律，進而維護交易之公平性，是值得重視的課題。現今財務再保險某些類型已脫離風險移轉之內容，然就監理之觀點，風險範圍雖得擴大，風險移轉仍是財務再保險契約之必要條件。在提供多樣化之財務商品、因應市場之需要、提升原保險人效率之前提下，監督方式似宜具彈性。再者，巨災債券的特殊目的機構主要運作兩種契約：一是特殊目的機構與債券發起人間的契約，另一是特殊目的機構與債券投資人間的契約，故巨災債券難以被歸類為某單一類型之金融或保險之商品。在傳統監理機制下，不同型態之金融或保險商品有不同之法律規範及主管機關，然替代性風險移轉商品得為避險者量身訂做，加上各種金融或保險之商品型態之界線已模糊，傳統監理方式已不符需要，參酌英國 2000 年金融服務與市場法，建立金融監理一元化之制度應為可行之辦法。本文運用比較法學的方法，研究英國與美國之替代性風險移轉的法律及監理，並說明我國現行法之情形，對我國未來立法提出原則性的參考意見。

並列摘要

Due to some insurers abusing financial reinsurance to ”paper over” their actual accounts, the solution of regulatory control has become worthy of concern. To meet the trend of liberalization of the insurance market and with a view to keeping market discipline and maintaining fair dealing, the settlement of appropriate regulatory schemes is a requirement. As regards risk transfer, not every type of financial reinsurance requires it. However, following the development of regulatory doctrines and practices, risk types were extended, but the risk transfer element is still essential in a financial reinsurance contract. In order to provide more diverse financial products, to meet the demand of consumers as well as to improve the efficiency of the insurers, increased flexibility in regulatory controls is possible. Moreover, under a CAT-bond regime, the SPV (Special Purpose Vehicle) involves in two principal contractual relationships: the first is the relationship with the originator/ceding insurer; the second is the relationship with the bondholders. It is difficult to categorize CAT bonds into a single product industry. Under a diversified system, one single sectoral regulator may have its authority and responsibility under the specified sector or the specified kind of transactions. An ART product can be tailor-made for the sake of the requirement of the cedant. The boundaries between types of financial services or products become blurred. The UK has launched a single regulatory regime by way of legislating the Financial Services and Markets Act 2000, which can be reference. The objectives of this paper can be approached by means of analysis from the viewpoint of a comparison of law and practice in England and the US. It is anticipated that foreign experience can in the future serve as material reference for reform in the area of related law in Taiwan.