| 英文摘要 |
Most of the financial control laws have criminal liability in Taiwan, such as: Banking Law, Securities and Exchange Act, Money Laundering Prevention Law, Law of Negotiable Instruments, Insurance Law, Trust Law, Trust Industry Law, Financial Holding Company Law, Financial Institutions Merger Law, Financial Asset Securitization Regulations, International Financial Business Regulations ... etc. Except for the Law of Negotiable Instruments which abolished criminal penalties in the 1970s, almost all major financial control laws and regulations have criminal penalties for violators. This is the“criminalization”of violations of financial control administrative regulations. This is in line with the fact that our legislative or authority always believed that if there is no threat of punishment, it will not be enough to achieve the effectiveness of legislation. Those financial control law that has been criminalized is just like the Constitutional Court interpret in the judgement of Constitutional Court No. 5 of 112,“Since the beginning of economic activities, there have been types of crimes that fall within the scope of economic criminal law.”However, this cannot deny the fact that financial control laws with criminal liability are ubiquitous in the current legal system. Most of the academic or practical only focus on the“formal constitutionality”of financial laws. This article will no longer discuss the“formal constitutionality,”but examine the domestic financial regulatory laws from a constitutional perspective and discuss the“substantive constitutionality”of criminal liability. The conclusion is that the types of basic constitutional rights involved in financial control laws involve the core protection of personal freedom (Article 8 of the Constitution), its value should take priority over the protection of“property rights,”and strict review standards should be adopted when reviewing substantive constitutionality. In particular, the criminal liability under the Securities and Exchange Act is a typical“statutory crime.”Compared with natural crimes, this type of crime obviously has lower moral condemnation. However, the current penalties imposed on those who violate the Securities and Exchange Act are“up to a fixed-term imprisonment of more than seven years.”The means and purposes are difficult to be considered to comply with the principle of proportionality or the principle of commensurate crime and punishment. Therefore, the conclusion of this study is that the criminal penalties of the current financial control laws are essentially unconstitutional. |
