- 學位論文
違約不交割規範模式之研究：民事責任vs.刑事責任
The Study on Failing to Perform Settlement in Securities Market : Civil Liability vs. Criminal Responsibility
摘要
違約不交割，在我國證券交易法制定之初，即有此項禁止規定，也因為當時時代背景的意義下，被納入我國禁止操縱市場行為類型之規範體系中。時過境遷，其存在的正當性備受挑戰，幾乎都是圍繞著「違約不交割行為僅是一個民事上的債務不履行行為」，何以在違反後得課處刑事責任，理應轉由民事責任加以解決即可。然而，本文以為，違約不交割的可罰性基礎並非在該民事性質的不履行交割行為，而是行為人的主觀故意或意圖，以及造成市場秩序危害之結果，該行為只是扮演著觸發整個刑罰評價的一個起點，而並非代表全部。也因此，單純的不履行交割行為解釋上本來就不應該課以刑事責任，惟一旦行為人是出自於不法操縱交易市場之目的或誘使他人買賣而謀取不法利益等意圖，再加上該行為確實將導致市場交易秩序有被破壞的風險，試問，此種行為態樣豈有不受裁罰之理？ 觀察現有的實務判決，對於違約不交割罪的解釋適用上仍是趨於分歧，只是，已經從早期容易出現判決不備理由之情況(只是單純的將事實涵攝於法條構成要件中而未交代何以如此適用的理由與判斷標準)，直至近期已逐漸獲得改善，惟其中仍是意見紛雜，故有賴未來判決之持續累積而期待得以歸納出一套客觀且一致的適用標準。此外人頭帳戶之濫用也是造成違約不交割之一大隱憂，我國對於人頭帳戶的控管，警覺性仍為不足，特別是司法實務上對於人頭帳戶的論罪科刑上，卻也顯得不夠謹慎與積極，往往因為其辯稱而認定為「不知情」，這樣的處理方式無異是助紂為虐，從基層證券商的未盡全責到最後司法實務的未克竟全功，彷彿給予了違約不交割孳生的溫床。 最後，本文想表達的是，違約不交割罪的制裁方式(無論是民事責任、刑事責任或是行政責任)並非可怕的洪水猛獸，若是使用駕馭的當，任一種機制的使用對於維護證券交易市場秩序而言，仍有其功不可沒的效用。唯有透過事前與事後的防護機制，即能有效避免此種行為侵害或過度侵害國家欲保護的自由交易秩序，而違約不交割罪的存在即是扮演著最後一道殺雞儆猴的防線。
並列摘要
Failing to perform settlements exists in our Securities and Exchange Act at the beginning, because of the historical background of our country’s prohibited market manipulation specification system. Presently, challenges on the legitimacy of its existence, due to the debates that surrounds the Failing to perform settlements should be categorized in its civil settlement, called “non-performance debt article". The settlement should not be applied as criminal responsibility, instead, it should be transferred to civil liability. However, in this work, we claim the fundamental interpretations of failing to perform settlements can be delivered as a criminal responsibility, due to non breach basis of the nature of the non-performance delivery of its civil behavior, on the perpetrator's subjective intent or its guilty mind of “not paying”, and thus results the disorders and hazards of the markets. Again, the nature of failing to perform settlements in its simple explanation of the behavior of non-performance delivery should not have imposed as criminal responsibility, but rather the perpetrator manipulate the market on purpose or induce others to trade and to seek illegal interests, such as the intention, together with the act will indeed lead to the risk of markets order has been destroyed, how, with this illegal action would not be considered as a criminal responsibility? In observing the current existing practices on judgments for breaching the contract interpretation applying to the crime is still not settled tends differences, but insufficient judgment decreases as time goes by. However this does not prepared the grounds for the judgment of the situation prone from early laws of the constituent elements of explaining why so applied without, until recently has been gradually improved, but which are still confused opinion, it depends on the judgment of the future expect to continue to accumulate and summarize a set of objective and consistent with applicable standards. Moreover, dummy account breach is another potential factor causing failing to perform settlements, being abuse caused by one of the big worries that’s not settled, by the country’s head of the control accounts, vigilance is still inadequate, particularly on account of judicial practice deserved for sentencing on the head, but being cautious and active, because its often argued as "unaware", which allow let the perpetrator to continue manipulating and escaping its criminal responsibility. Finally, we would like to express that the crime of breach of contract is not settled sanctions (whether civil liability, criminal or administrative responsibility for administrative liability) is not a terrible scourge, if the use of control when, either maintaining the securities and exchange market orders concerned, they denied their effectiveness. Only through defenses beforehand and afterwards, which can effectively prevent such acts or violations over the country’s free trade order, and breaching of contract serves as warning to others in the last line of defense in market shares.