| 英文摘要 |
In the current judicial practice, the majority of opinions hold that “the subparagraph 2, paragraph 1 of the Article 171 of the Securities and Exchange Act” remains as a narrower law in comparison to “the subparagraph 3, paragraph 1 of the Article 171”. Further, the latter (subparagraph 3) is supplementary to the former (subparagraph 2). And both are the special provisions of the crime of breach of trust, em-bezzlement and fraud in Criminal Code. However, the legislative purpose of regulation of the crime of Special Breach of Trust has been widely disputable through the years. When looking into the nature of the behavior of special breach of trust, if the perpetrator did not take advantage of the higher convenience of his position, can we justify the need to increase the punishment of this behavior? In addition, the second paragraph of Article 171 of the Securities and Exchange Act, which prescribes that when the profits due to criminal action exceed 100 million NTD, the perpetrator shall be subject to not less than 7 years and not more than 15 years of imprisonment. However, the maximum sentencing penalty in the cases of Special Breach of Trust so far in current judicial practice is only 9 years.
Therefore, this fact further brings us to a legislative consideration as to delete the objective punishment requirement of the crime of Special Breach of Trust. This paper calls that at this stage, the society still embraces the regulative need of Special Breach of Trust. Nevertheless, in the long term, the criminal punishment shall return to the Criminal Code, while considering equipping other mechanisms such as administrative punishment in the Securities and Exchange Act. |
