公權力委託制度的新發展－－以臺灣證券交易所為例

New Developments in Delegation of the Exercise of Public Authority: A Case Study of the Taiwan Stock Exchange

隨著行政法律關係多樣化與行政任務履行方法的改變，行政組織的定性日益困難。本文以證券交易所為探討對象、參照德國法制，分析行政主體與其組織權行使的關聯性。交易場所在行政組織法上之定位，庭、從設立主體與被設之市場組織、經營責任與經營活動區分。傳統公權力委託限於少數單項權限之移轉，已不符合現實發展需要，從而主體委託之制度確立，正可提供規範證交所主體與組織間關係之範例。本文認為證交所須從兩個方向認識：證交所主體係指依法特許得設立開辦證券交易活動場所之人，對該公營造物性質之市場負有維持正常營運之法定義務，目前台灣證券交易所為一公私合營事業形態的國營事業。而證券交易所組織應定位於有部分權利能力之行政主體，就市場正常運作之範圍內得行使公權力。證交所與擬議中的控股方式，適足以說明公權力委託制度發展的新面貌。本文認為證券交易所為一行政組織法與經濟行政法的交錯地帶，亟待有識之士的開拓。

Due to the diversity of administrative legal relationships and changes in the way in which administrative tasks are performed, it is getting harder to characterize administrative organizations. This article examines the Taiwan Stock Exchange to analyze the relevance of an administrative entity to its performance of the right to organization, taking the German legal system as a point of reference. The orientation of Taiwan Stock Exchange can be divided into two aspects: establishing the subject (entity) and the market organization to be established, and managing responsibility and managing activity. The traditional delegation of the exercise of public authority is limited to a few authorities to be transferred and it no longer accords with the demands of the developing reality. Thus, formation of the system of subject delegation can offer examples of regulating the relationship between the subject of the Taiwan Stock Exchange and its organization. This article argues that Taiwan Stock Exchange should be viewed from two perspectives. The subject (entity) of the Taiwan Stock Exchange which established a trading floor as prescribed by law has the legal responsibility to maintain the normal functioning of the market. At present the Taiwan Stock Exchange is a state-run business with public- private joint management. The Taiwan Stock Exchange should be orientated as an administrative entity with partial legal capacity and should exercise public authority within the scope of the normal functioning of the market. The Taiwan Stock Exchange and its proposed way of holding can be explained as a new feature of the delegation of the exercise of public authority. The study concludes that the Taiwan Stock Exchange represents an overlap of the organic act of administration and economical administrative law and must be explored further.