涉外衍生性金融商品爭訟之準據法適用

The Application of Governing Law Involving Disputes of Foreign-Related Financial Derivatives

我國就有價證券之定義，主要是依照證券交易法第6條各項的規定作認定。惟法院見解認為只要實質上對公眾招募，具有投資之功能，且判斷標準上著重於「投資性」與「流通性」之認定，如符合則應認為係證券交易法上有價證券。又本文所討論之衍生性金融商品其中之一的連動債，結構上即是二者以上之金融商品之結合，包括固定收益商品與衍生性商品或衍生性商品與衍生性商品，所以其明顯不屬於單一種類金融商品的任何一個種類。是以，本文所討論之連動債究竟應屬有價證券而適用證券交易法，抑或是一般金融商品，最高法院106年度台上字第431號判決，於歷審判決對此部分均有論述，且有巧妙的處理。再者，涉外民事法律適用法第22條有關債權的部分規定：「法律行為發生指示證券或無記名證券之債者，其成立及效力，依行為地法；行為地不明者，依付款地法。」但這裡指示證券或無記名證券是否包括資本證券、股票、債券不甚明確。因此，我國近年來司法實務雖偶見涉外衍生性金融商品之訴訟，但國際管轄權並不常成為訟爭的焦點，反倒是我國證券交易法及涉外民事法律適用法，對涉外衍生性金融商品的規範不明確成為焦點。

In Taiwan, the definition of securities is mainly set forth in the paragraphs of Article 6 of the Securities and Exchange Act. The court however held that as long as the securities offered to the public, equipped with investment function, which is determined with focuses on the aspects of “investment” and “liquidity”, will be categorized as securities under the Securities and Exchange Act. In this paper, we will discuss structured note that is one kind of financial derivatives, basically a combination of two or more financial products, including both fixed income securities and derivatives, or multiple derivatives. Therefore, obviously a structured note does not belong to a single category of financial products. This paper aims to explore whether a structured note should be categorized under negotiable securities and thereby covered by the Securities and Exchange Act, or classified as a general financial product. The Supreme Court’s decision in 2017 Tai-Shang-Zi No. 431 dealt with this question presented above cleverly. Furthermore, pursuant to Article 22 of the Act Governing the Choice of Law in Civil Matters Involving Foreign Elements, it stipulates that “[w]here a juridical act results in an obligation on a security made payable to order or to bearer, and is not governed by Article 21, the formation and effect of the act are governed by the law of the place where the act was performed; where the place of the act is unclear, by the law of the place of payment.” Nevertheless, it is unclear if the above-referred obligation on a security made payable to order, or to bearer includes the capital securities, stocks or bonds. Accordingly, despite the rare occurrence of derivative-related litigation cases in Taiwan in recent years, international jurisdiction is seldom the focus of such litigation. Instead, the vague languages specified in Taiwan’s Securities and Exchange Act as well as the Act Governing the Application of Laws to Civil Matters Involving Foreign Elements pertaining to financial derivatives are often the main issues of litigation cases.