公告不實與櫃買法制

OTC Market and Redelegation of Regulatory Authority

證券交易法對店頭市場的規範，只有第62條一個條文，而且內容簡略，只是授權主管機關訂定管理辦法。
實務上，主管機關將訂定市場規範的權力，大量轉授權給櫃檯買賣中心。依大法官相關解釋的意旨，這不是合法的轉授權。富○公司混油案的判決，凸顯違法轉授權的缺失。
為健全證券市場的管理法制，證券交易法應修正，充實店頭市場的規範，並賦予櫃檯買賣中心管理市場的法律地位。

Since its establishment in 1994, the Taipei Exchange (“the Exchange”) has been in charge of regulating Taiwan’s over-the-counter Market (“the OTC Market”).
The Exchange prescribes criteria for listing and delisting of securities, promulgates rules to regulate listed companies and securities firms, includung inspection of books, records, and imposition of sanctions. The Exchange has been a de facto Regulator of the OTC Market.
The Exchange is organized as a private non-profit Foundation, and has never been authorized by the Securities Exchange Act (“the Act”) to regulate any market. In fact the Act delegates the regulatory authority to the Financial Supervisory Commission (“the Commission”), and the Commission redelegates the authority to the Exchange.
The Comission’s redelegation, however, has no legal basis. The Constitutional Court has twice stated that if a statute delegates the competent authority to make the rules and does not provide for a redelegation, the competent authority should promulgate the rules by itself, and cannot redelegate the rule-making power to its subordinate agencies. (J.Y. Interpretation Nos. 524 & 543).
The Act does not provide for such a redelegation. The Commission has no authority to redelegate its rule-making power to the Exchange. The current practice is unconstitutional. This Article suggests that the Act be amended to address the problem.