證券交易法有關經主管機關核定之有價證券其範圍與爭議

The scope and controversy of the Securities Exchange Act in relation to securities that have been approved by the competent authority

證券交易法對於規範對象之有價證券範圍認定，現行採例示及主管機關核定之方式，與美日證券管理法令兼採性質與定義解釋之立法例不同，我國之立法本旨在求法律適用範圍明確可資遵循，然由於我國證券交易法欠缺概括規定之彈性定義，以致在面對金融創新之潮流下，就原不屬於法律所明定例示之有價證券事項，但衍生與創新之內容或範圍與有價證券又有相類似之處，礙於以前未曾經主管機關明確界定為有價證券之標的商品，因此無從適用證券交易法加以規範，以致如何監督管理爭議不斷，晚近諸多案例顯示主管機關在因應不斷推陳出新之金融商品定位上窮於應付，防範與監督管理之法令架構與適用上更顯參差不齊，司法機關之判決更是南轅北轍，實已嚴重牴觸刑事責任之罪刑法定主義與行政法之依法行政原則，準此，本文擬以最近司法機關與行政主管機關就臺灣存託憑證之定位與認定為例，透過我國之實務裁判案例之見解與國外立法例以比較分析之方式，分析探討主管機關核定之有價證券之範圍，以釐清證券交易法之適用與人民權利保障之爭議。

The Securities Exchange Act currently determines the scope of regulated securities by means of examples and approval by the competent authority, unlike the legislation in the United States and Japan where the securities management decrees specify both their nature and definitions.The legislation in our country primarily seeks to clarify the scope of application for purposes of legal compliance.How ever, since the Securities Exchange Act in our country lacks a flexible general definition, once there is a new trend of financial innovation, the matter will not fall under any category of legally defined securities, even though the evolving and innovative content or scope of the instrument has similarities with securities.G iven that the product has not been clearly classified before by a competent authority as securities, it does not fall under the application of the Securities Exchange Act, resulting in continuous disputes with regard to its supervision and management.I n recent years many cases have shown tha t competent authorities, even though they should constantly find new ways for defining new financial products, are not making enough efforts.The structure and application of laws and regulations for prevention and supervision are even less uniform.The rulings of the judiciary have even less in common and in fact seriously contradict the requirement of a legally prescribed punishment for a specified crime (nulla poena sine lege) to establish criminal liability as well as the principle of legality in administrative law.B y illustrating the example of how recent judicial organs and administrative supervisory authorities have classified and approved the Taiwan Depositary Receipts and with reference to domestic practical cases and judgments, as well as by means of comparative analysis of foreign legislation, this article intends to analyze and discuss the range of securities that have been approved by the competent authority with the aim of clarifying disputes concerning the application of the Securities Exchange Act and the protection of people's rights.