從最高法院111年度台上字第1327號判決省思我國支付法制之困境與重構

Revisit the Payment Law in Taiwan–Reflection on a Decision from the Supreme Court

臺灣於2011年經主管機關函釋，認定有實質交易為基礎之代理收付並無違反銀行法之虞，其後經電支條例立法、2021年大幅修正，進一步於電支條例中將代理收付實質交易款項再為分級管理。然過去我國法院於相關案件審理時卻未審酌此一涉及是否有特別刑法相繩之重大差異，直至最高法院111年度台上字第1327號判決方指出上述違誤並為批判。本文從上開最高法院判決出發，先爬梳我國與電子支付、第三方支付相關法規、肩理之發展與現況，於此基礎上檢視我國過去十年間與匯兌有關之高院與最高院判決，從中整理出二十餘案適用法律有疑之判決並簡評之。本文進一步探究臺灣非銀行支付法制發展中，衝撞式、因個案立法所形成問題，最後嘗試論證我國對於一部完整支付法規之需求，並提出該法之法制框架以為日後參酌。

The advancement of the technology and internet has changed the way how people pay money dramatically. It also reshaped the landscape of the payment industry and ushered the booming of the non-bank payment. Following the evolutionary development of e-commerce, the online third-party payment emerged and developed to a dominant payment instrument for CtoC online transactions. However, in Taiwan, the legal compliance issue and concern from the authority came with the growth and almost squelched the payment market. In 2011, Taiwan’s competent authority issued a document stating that Collecting and making payments for real transactions as an agent (hereinafter the third-party payment) did not violate the Banking Act. Subsequently, the Act Governing Electronic Payment Institutions was enacted in 2015 and was significantly amended in 2021. In this act, the third-party payment was included and further classified for regulatory. However, Taiwan’s courts did not recognize the difference between remittance and third-party payment and therefore in most cases considered the third-party payment as remittance. The service providers were accused violating the banking law. In 2022, the judgment of the Supreme Court, case number 1327, finally pointed out the aforementioned error and criticized it. Starting from the aforementioned judgment of the Supreme Court, this article first examines the development and current status of Taiwan’s relevant regulations and practices concerning electronic payment and third-party payment. Based on this, the article reviews the high court and supreme court judgments related to remittance in the past decade, and compiles and briefly comments on more than twenty judgments with doubts about the application of the law. Furthermore, this article explores the issues arising from the cases and the legislation of Taiwan’s non-bank payment. Finally, the article attempts to argue the need for a comprehensive payment regulatory framework in Taiwan and proposes a legal framework for such a law.