台灣證交法強制公開收購制度之合憲性及改革論議

On the Constitutionality of the Mandatory Public Tender Offer Rule in the Taiwanese Securities Exchange Act and Its Reform Issue

臺灣證券交易法強制公開收購制度，係於二○○二年修法增訂，限制行為人取得股份應以公開收購方式為之，對於義務違反者亦定有刑事制裁之罰則。當立法者以刑事制裁作為公開收購義務履行確保之手段時，勢必涉及憲法與行政法二種層次之檢驗，前者涉及「規制目的與規制手段合憲與否」之爭議，後者則為「金融規制行政上法執行實效性有無」之問題。由現行證券交易法第四三條之一第三項規定觀之，其以不確定法律概念作為犯罪構成要件，而有違反法律明確性原則之嫌；且於罪刑法定主義與刑罰謙抑主義之精神下，系爭規範亦有違反比例原則之虞。本文對此將參照日本法制經驗，就規制緩和下軟法治理、自主規制、共同規制等概念予以介紹，針對臺灣證券交易法強制公開收購制度進行檢證，並以金融規制改革之觀點進行實質合憲性分析，俾供臺灣學理與實務參考。

In Taiwan, the mandatory public tender offer rule was introduced in the amendment of the Securities Exchange Act in 2002. It requires bidder to make offer publicly to purchase stocks; criminal penalties are imposed on violators. In order to examine constitutionality and legitimacy of this rule, however, the legitimacy of regulatory purpose, moderateness and necessity of regulation should be further examined. Especially, if the legislator imposes criminal penalties as measure to enforce this rule, it needs to pass the tests of constitutional law and administrative law. The former relates to the constitutionality of regulatory purpose and measure; the latter relates to the effectiveness of monetary regulations enforcement. The current provision of Section 43-1 (3) of the Securities Exchange Act uses undefined legal term as a crime requirement, it might violate against the principle of legal clearness. Under the perspective of legality principle and moderation principle in criminal law, can this rule meet the rule of legislative reservation and the principle of legal clearness? Can its regulatory purpose and measure meet the proportionality principle? This study refers to the experiences of the Japanese law, introduces the concepts such as soft law governance, self-regulation and co-regulation, and further examines substantial constitutionality of this rule from the viewpoint of monetary regulation reform.