- 學位論文
限制台灣企業對陸投資規範之探討 -商業因應策略與法律執行效果之審視
A Study of the R.O.C. Regulatory Policy covering Taiwanese Business Investments in the P.R.C. -- A Perspective on Taiwanese Business Strategies Compensating for Regulatory Policy and their Effects
摘要
台灣係一淺碟型之海島經濟，須與國際經濟社會交流與貿易，始得以生存與發展；而中國大陸之經濟快速成長，已為全世界增長最快之經濟體。兩岸之同文同種，我國佔有地理及人文之利，卻礙於政治意識之歧異，藉由強行經濟管制方式，遏抑企業西進投資；我國政府之經貿法制即係我國企業西進投資的阻礙之一。 面對於中國大陸此一世界市場，我國企業以迂迴方式進行投資，轉至第三地投資境外公司，再以境外公司名義至中國大陸投資；利用法規套利行為，規避我國之法制規範，亦顯示了法域競爭下法律市場力量之供給與需求，已對我國企業為營運決策產生影響；而國際間均主張法規鬆綁與管制革新有助於提升經濟成長，過多之管制相互扞格，不檢討精進並鬆綁法制，法制終究會失去其既有功能，可以低成本下維持經濟秩序之法規，對國家、企業而言，才是好的法制。 而2010年ECFA之簽訂，不僅促進兩岸經濟全面交流、避免我國於區域經濟之邊緣化，更將有助於我國融入東亞區域經濟整合；且ECFA為兩岸所締結影響最大之雙邊協議，亦為WTO首項具有主權爭議之會員國，簽定之貿易協定，可促使兩岸回歸WTO模式，商議優惠協議，更可提高我國於國際市場競爭力，提升我國與他國FTA之洽簽速度。 瑞士洛桑國際管理學院(IMD)發布之2012世界競爭力年報(World Competitiveness Yearbook)，我國競爭力自第7名落至第11名，認為我國應鬆綁金融法規，以免阻礙企業營運；對於企業西進投資，亦應從全球產業佈局之角度思考，以引導代替限制，藉由國際組織及國際規範之框架，利用區域經濟組織之擴增，建立正常經貿關係，以求雙贏新局。
並列摘要
The economic character of Taiwan is a shallow type. In order to survive and to develop, it shall depend and rely on exchanging and trading with the international main economic communities and nations. The economy of Mainland China grows rapidly and it has become the fastest one in its growth among others in the world. Both Taiwan and Mainland China share the same culture and race. Although Taiwan possesses the advantage of geography and culture, the authority has suppressed the westward investment of Taiwan enterprises due to the discrepancy in politics. The economic policy of Taiwan in its restrictive nature is one of the main obstacles for the westward investment of Taiwan enterprises. Due to the dilemma mentioned above, Taiwan enterprises invest offshore companies in the third country (or region) through a roundabout approach. They invest in Mainland China in the name of offshore companies in order to respond the world market trend and to meet the need of the tremendous market in Mainland China. Taiwan enterprises use the regulatory arbitrage mechanism to dodge the legal regulation managed and controlled by the government of Taiwan. It also reveals that the supply and demand of market force dominated by the law and statutes under multiple jurisdiction competition has affected the decisions for the operation of Taiwan enterprises. It is advocated internationally that the deregulation and regulatory reform mechanism can approvingly improve the economic growth. The excessive regulations and statutes dominated by authorities may interfere the development of Taiwan enterprises. Therefore, it causes legal conflicts between the regulations and statutes mentioned above. Owing to the absence of improvement and deregulation system, the legal system will eventually lose its existing functionality. A legal system which could maintain proper economic order under a lower cost is beneficial for the countries and enterprises. The ECFA signed by Cross-Straits in 2010 has positive effects upon both parties. Not only do they promote Cross-Straits economic trade comprehensively but avoid the marginalization of Taiwan, and contribute to the economic integration of Taiwan and East Asian as well. The ECFA is the largest bilateral agreement of Cross-Straits. It is also the first trade agreement signed by the Member States of WTO which are controversial in sovereignty. By signing the ECFA, it benefits the authority of Taiwan in many ways. First of all, it facilitates Cross-Straits returning to the system of WTO, and it helps when there is necessary to negotiate preferential agreements. It also enhances our competitiveness in the international market. Finally, it can also assist Taiwan to initiate the negotiations on FTA with other countries. According to the 2012 World Competitiveness Yearbook published by the Swiss IMD, Taiwan competitive rank in the world has fallen from the 7th to the 11th. The Swiss IMD also recommended that Taiwan financial laws and regulations should be deregulated to avoid intervening the operations and management of enterprises. As for the westward investment of Taiwan enterprises, the Taiwan government should reflect from the global industrial layout and perspectives. Guiding, instead of limiting, is the best policy for the development of Taiwan enterprises. Furthermore, Taiwan should strive to build a regular economic and trade relationship base on the framework of international organization and norms. It should eventually create a win-win situation for both Taiwan and Mainland China.