證券交易糾紛救濟制度之探討

2016年8月底樂陞科技因收購人百尺竿頭公司無法交割股款而發生我國第一件公開收購違約交割案，受害投資人高達2萬人，損失慘重。我國的證券投資人以散戶居多，一旦發生有掏空公司或違約交割等不法情事，投資人將蒙受財產上損失。為保障經濟及資訊皆處弱勢之投資人，證券商公會、投資人保護中心或金融消費評議中心皆設有調處或評議等訴訟外紛爭解決機制，惟實務上發現以調處機制解決之證券糾紛案件不多，爰有必要探討這些機制為何未能發揮當初設置之預期效益。本研究透過觀察現行之訴訟外紛爭解決機制之起源、功能、實務應用現況及法院之案例，釐清證券交易糾紛之各種類型，逐漸拼湊出投資人行為、券商與發行人之行為、爭議處理機構及法院的處理方式，瞭解所有的參與者在具體個案中會如何基於自己的最大利益行動，歸納出現行機制的保障是否足夠，投資人將如何選擇以及可能改進之道。透過審視法規、投資人之價值觀及爭議處理機構間相互影響，所呈現的訴訟外紛爭解決機制運作現狀及其效果，研究結果發現該等機制有無法終局性的解決紛爭、投資人舉證困難及無強制力等問題，以及樂陞案係因中介之金融服務業無需負擔民事責任而招致民怨。本文研究結論建議，調處制度為爭議案件最前段解決機制，善加利用將可大幅減少後續訴訟，應由金融消費評議中心專責辦理糾紛之調處，投資人保護中心專責保護投資人；將現行金融消費評議中心之調處機制修正為非任意程序，積極建議當事人解決方案；強化投資人保護中心與刑事調查單位合作，在案件發生初期即可掌握資料做為民事訴訟之基礎，有助於加速處理時效及勝訴之機率；公開收購案應在法律中增加應賣人對金融服務業之請求權基礎，課予擔任中介者之金融服務業與公開收購人負共同侵權行為責任，進一步保障投資人。

關鍵字

樂陞；公開收購；證券交易糾紛；訴訟外紛爭解決機制；調處

並列摘要

At the end of August 2016, Bai Chi Gan Tou Digital Entertainment Co., Ltd., the prospective acquirer of XPEC Entertainment Inc., failed to settle the tender offer prices upon closing date, causing great losses to around 200, 000 investors. This was the first case regarding default in closing on tender offer acquisition in Taiwan. In Taiwan, the participants in securities markets are mostly retail private investors. In the event of any unlawful acts, such as fraudulent acts damaging the company’s interests or any default in settlement upon closing, those investors will suffer financial losses. To protect those investors in a disadvantageous position in terms of financial resources and information, the Taiwan Securities Association, the Securities and Futures Investors Protection Center (“SFIPC”) or the Financial Ombudsman Institution (“FOI”) are all equipped with mediation or deliberation or other non-litigation dispute resolution mechanisms. However, as a matter of practice, we found that the foregoing mediation mechanism was rarely used to settle the securities disputes. It is necessary to review and discuss why said mechanisms of relief fail to bring about the expected utilities as planned originally. By observing the origin, functions and practical application status of the current dispute resolution mechanism other than litigation together with the court cases, this study clarifies the various types of securities trading disputes, and, in addition, gradually pieced together the behaviors of investors, securities firms and issuers, together with the handling ways of the dispute resolution agencies and courts. In addition, this study will shed light on how all participants would act based on their maximum interests in specific cases, and summarize whether the protection of the existing mechanism be sufficient, how the investors would make choice, and the possible improvement options. Through reviewing the laws and regulations, the values of investors, together with the mutual influences of dispute resolution agencies, the present operation status and result of the non-litigation dispute resolution mechanism have been revealed. As a result, this study found that said mechanisms have issues such as failure to reach a final and conclusive resolution, difficulties encountered by the investors in burden of proof, and lack of enforcement power. In addition, it raised a great wrath among the public due to the fact that the default in closing case of said XPEC Entertainment Inc. involves the intermediary financial servicing industry which is free from any civil liability. The conclusion of this study suggests as described below. Given the mediation system is the initial mechanism for dispute resolution, the effective use of such system will significantly reduce the subsequent lawsuits. It is advisable that the FOI be in charge of the dispute mediation, while the SFIPC be in charge of the protection of investors. The current mediation mechanism under the FOI should be revised as mandatory procedure so as to propose actively the solution options. It is suggested to strengthen the cooperation between the SFIPC and the criminal investigation agency so as to facilitate the collection of data as the claim basis of the civil lawsuit at the initial stage, which will assist in shortening the procedural period and enhance the winning chance. For the tender offer acquisition, it is recommended to add the cause of action for those selling shareholders against the financial servicing industry, and stipulate to the effect that the financial servicing industry acting as an intermediary together with the tender offer acquirer shall be liable jointly and severally so as to further protect the investors.