近年來,隨著全球金融市場之整合及通訊技術之發展,衍生性金融商品不斷推陳出新,變得更加國際化、複雜及高風險。在多數情況下,一般投資大眾並不具備了解金融商品結構及風險之專業知識能力,而需仰賴金融機構提供說明。金融機構因掌握金融商品之重要資訊,進而取得交易優勢。實務上多數金融商品不當銷售之糾紛,皆肇因於金融機構從業人員為賺取佣金或達成業績,而推介不適合客戶之金融商品。為避免層出不窮的不當銷售事件,政府僅能透過規範金融業者不當推介手法及限制部分金融商品之推介對象,達成保護投資人之目的。 雷曼兄弟之破產使連動債在一夜間成為一文不值的廢紙,許多受害投資人主張銷售機構使其誤信商品能保本或保證獲利,但連動債非屬證券交易法第六條之有價證券,導致金融機構在連動債之銷售上僅受低度監理,且礙於證券投資人及期貨交易人保護法之規定,投保中心無法受理此類案件,造成投資人求償之困難。由此可見,現行法制對於金融推介之規範密度有所不足,亦欠缺有效率之投資人保護機制。 本文認為,在金融業跨業經營之趨勢下,傳統行業別之界線已日漸模糊,目前之行業別管理已無法為新型金融事業及商品提供適當之規範基礎,而有必要整合現行金融服務相關法規,予以一致性之規範並賦予相當的法律效果,以避免監理套利及不公平競爭之情形。此外,為於第一時間有效遏止金融業者不當推介銷售之行為,應賦予主管機關命業者限期改善並課予罰鍰之權限,倘業者未採取必要的更正措施,主管機關得連續處罰之,並視情況停止全部或部分金融商品之銷售。 為維護市場信心及保護投資人權益,本文建議在加強金融推介之管制外,亦得參考英國金融調處機制及金融服務補償機制之設計,建立完善的投資人保護機制,使多數爭議案件能在單一機構之主導下,透過訴訟外紛爭解決機制迅速解決。另一方面,針對進入司法程序的此類案件,應由具金融知識背景的專業法庭負責審理,並加快處理速度,使受害投資人能迅速獲得補償。
Since the international financial integration and the technological advancement in communication, derivative financial instruments have become more international, complex, and risky. In most cases, without proper explanations and recommendations provided by financial institutions or financial advisors, ordinary investors would not be able to realize the complicated financial structure of the instrument and the risks associated with it. Moreover, financial institutions and their agents hold important information pertaining to the financial products, and therefore would have advantages when dealing with their clients. They may be motivated to promote or sell unsuitable financial instruments to their clients for their own benefits, such ascommissions or performance objectives. In order to prevent mis-selling scandals and protect investors, it is important for the government to promulgate laws and regulations against inappropriate and unsuitable promotion and to limit the range of purchasers for certain financial products. The recent Lehman Brothers bankruptcy has left investors with Lehman structured notes holding worthless investments. Many of the investors in Taiwan have tried to file claims against the brokers who sold them these structured notes as conservative and safe investments. However, since structured notes are not classified as “securities” under Article 6 of the Securities and Exchange Act, financial institutions that promote and sell such instruments are under very low level of supervision. In addition, according to the Securities Investor and Future Trader Protection Act, Securities and Futures Investors Protection Center cannot take up such claims because these investors do not satisfy the definition of securities investors under the Securities and Exchange Act. Thus, it can be seen that not only are the existing regulations on financial promotion insufficient, but the current securities investor protection scheme is also unable to effectively assist investors in claiming compensations. Nowadays, financial conglomerates have become an important part of the financial landscape. Such conglomerates which combine banking, security, trading and insurance within one organization not only blur the boundaries between different financial sectors, but also create new challenges for regulators. Since the increasing degree of cross-sector consolidation necessitates closer cooperation, the traditional supervision structure, which was organized along sectoral lines, must be reorganized to result in efficient regulation and supervision of financial conglomerates as well as for firms operating in a single sector. To this end, the unification of financial services laws by legislation is a must. Moreover, firms or individuals violating relevant laws and regulations must bear the same consequences in order to prevent the regulatory arbitrage and unfair competition. The sanctions for breach of the restriction on financial promotion should also be expanded so as to enable regulatory authorities to order violators to make improvements in the first instance and impose high administrative penalties on them. For continuing contraventions, the regulator may also impose penalties on a regular basis or suspend the sales of all or any part of the financial instruments. Besides increasing the effectiveness and intensity of the supervision on financial institutions, a complete scheme for providing financial protection to investors should be established in order to maintain market confidence. Relevant disputes should be resolved primarily through the use of alternative dispute resolution (ADR) and under the directions of a single institution to save time and money. If a dispute is not resolved through ADRs and the parties file a lawsuit, an independent, adjudicative body, such as the Financial Services Tribunal, should be established to adjudicate upon breaches of the rules of professional conduct.
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