金融危機之應變與管制課題

Contingency and Regulatory Issues in Financial Crises

本文以金融危機為研究對象，探討憲法框架下法制與政策的應變作為，並比較德國與我國既有規定及實施經驗。分析始於對危機特性及憲法體系解釋，金融危機本質上屬於市場失靈，影響範圍涵蓋個人財產、國計民生及金融機構等，需調和權利保障與行政管制間的平衡。基於憲法擔保責任之委託，國家有建立法制與金融管制之義務，以保障經濟基本權，維持信任與秩序穩定，並促成私法自治之實現。本此憲法設有節制資本與金融機構管理的規定，以達成金融市場穩定性。在危機時期，國家角色需轉變為救援與應變，以防止災難性後果。本文指出，傳統上憲法應對緊急情境多以緊急命令權為主，然應更強調國家保護義務的實現。再進一步從金融機構、債權人及股東財產權的本質出發，闡釋信任與體系穩定的關鍵角色，進行地緣與時序的比較研究。研究發現，危機時期之疏困措施與正常化後一改自救措施，為國家介入轉變為私人自承責任的轉折。從外溢效應的內部化及財產權秩序重塑的觀點，法秩序應強化財產權人在金融領域的注意義務，分層次的併用公私法制度為綜合管制手段，以回應憲法塑造財產權社會義務與合理節制資本的宗旨。

This article examines the financial crisis and discusses its constitutional significance, legal response, and governmental handling. The analysis is based on the characteristics of financial crises and the interpretation of the constitutional system. As a particular form of crisis, it is characterized more by market failure than political instability or natural disasters. The relationship between property rights, national livelihoods, financial institutions, and companies is then regulated from the perspective of protection and control.
The role of the state varies in different phases. The constitutional notion of guarantee obligation originally tasked the state with administratively and legally controlling the fundamental rights of the economy, creating trust and order stability, and allowing them to interact based on the principle of private law autonomy. However, in times of crisis, its role has transformed into a superior role of rescue and response, necessary to prevent catastrophic consequences. This article argues that crisis is a constitutional pathway to avoid emergencies, and larger changes in finance are just one aspect of it. The traditional focus on emergency powers as a means of avoidance should be replaced by a focus on realizing the duty of protection.
The study found that while government rescue measures were undertaken in private law during the crisis, the internalization of spillover effects and the reordering of property rights were not considered. In the post-crisis period, the legal system has moved towards an alternative and complementary order of public and private law to achieve overall harmony between private law autonomy and public order. This should be accomplished through a risk management legal system.
The real problem faced during the financial crisis was the search for the nature of property rights and the limits of their exercise. During the crisis, the state has an inherent responsibility to prevent the collapse of the financial system and the real economy, but the use of fiscal instruments supported by universal taxation is the only exception. The trinity of rights, obligations and risks exposed by the crisis is inherent in the nature of property rights. Those who are self-accountable are more careful in calculating opportunities and risks than those who manage other people’s affairs. Property owners should pay careful attention to the current state of their property and their decision to use it, and actively take care of their own affairs, which has a special self “therapeutic effect”.