| 英文摘要 |
The Securities and Exchange Act is enacted to regulate and supervise the trading of securities, but some provisions of this Act were declared unconstitutionally. Therefore, we should consider that not all provisions of this Act are certainly constitutional, for example, the legal nature of“approval”(Article 6, Paragraph 1 of the Securities and Exchange Act). If we consider“approval”as Legal Delegation, it lacks specific statutory authorization compared with other relevant provisions of the same law. This article believes the legal nature of“approval”is not legal delegation, but a type of administrative disposition.
Secondly, the official Document No. 900 issued by the competent authority of the Securities and Exchange Act (the Ministry of Finance) in 1987, is still cited by courts and has even become the basis for civil and criminal judgments. Accordingly, it is necessary to examine the legal nature of this document and determine whether it violates the principle of legal reservation or the principle of legally prescribed punishment to protect people’s rights and interests. Additionally, observe from the receiving agency, the Securities Firm Division affiliated with the Ministry of Finance, this document should be regarded as internal guidance, it does not have the effect of binding people’s rights and should not be deemed a legal order. Even if some people believe that the official document is legal order, but it has not been re-amended or re-established after the Administrative Procedure Act came into force, it shall become inoperative, the court should follow the J.Y. interpretations and not apply it. |
