現行證券交易法對臺灣存託憑證（TDR）之規範依據 The Regulatory Basis on Taiwan Depositary Receipts (TDR) in the Securities and Exchange Act
王志誠 Chih-Cheng Wang
Affiliations
王志誠 Chih-Cheng Wang
Distinguished Professor, College of Law, National Chung Cheng University; Researcher, Center of Industry 4.0., National Chung Cheng University; Ph.D. in Law, College of Law, National Chengchi University.在2012 年1 月4 日增訂證券交易法第165 條之2 規定之前，證券主管 機關雖認為臺灣存託憑證（TDR）係屬「外國之其他具有投資性質之有價證 券」，但司法實務上亦有判決認為，存託機構在我國內所發行之臺灣存託憑 證，雖是「表彰存放於保管機構之外國發行人有價證券」，仍與該外國發行 人在外國發行之「外國有價證券」本身有別，導致證券主管機關是否曾依證 券交易法第6 條第一項規定之授權，將臺灣存託憑證核定公告為證券交易法 上之有價證券，產生重大爭議。至於我國於2012 年1 月4 日增訂證券交易法 第165 條之2 規定後，因已對於來我國第二上市或第二上櫃之有價證券，明 定其有價證券在中華民國募集、發行及買賣之管理、監督，準用證券交易法 第6 條規定，臺灣存託憑證成為我國證券交易法上之有價證券，應無疑義，但司法實務上竟有判決認為證券交易法第165 條之2 之規範對象與臺灣存託 憑證無關。本文期能釐清實務爭議之所在，並從解釋論之觀點提出管蠡之 見，以杜爭議。 Prior to the stipulation of Article 165-2 of the Securities Exchange Act on January 4, 2012, the securities authority Identified by itself that it has announced the Taiwan Depositary Receipt was one of “other securities of foreign countries with investment nature”. However, some courts held that the Taiwan Depositary Receipt issued by the depositary institution in R.O.C. is still different from the “foreign securities” issued by the foreign company, although it is recognizing the securities in the account of the custodian institution which is issued by the foreign company. The major controversy is whether the securities authority has announced the Taiwan Depositary Receipt (TDR) belong to the securities under Paragraph 1, Article 6 of the Securities Exchange Act. As for the amendment of Article 165-2 of the Securities Exchange Act on January 4, 2012 in Taiwan, it has been identified Article 6 of the Securities Exchange Act shall apply mutatis mutandis to the secondary listing or second cabinet of the securities which issued by the foreign com-pany. That is the public offering, issuing, management and supervision in R.O.C. shall apply mutatis mutandis to the Article 6 of Securities Exchange Act. Therefore, there is no dispute about the Taiwan Depositary Receipt become the securities in the Securities Exchange Act. In fact, there are some courts held that the Taiwan Depositary Receipt does not regulated by the Article 165-2 of Securities Exchange Law. This paper will clarify the core point of the practical disputes, and put forward the views from the perspective of interpretation theory to eliminate the mentioned disputes.
在2012 年1 月4 日增訂證券交易法第165 條之2 規定之前，證券主管機關雖認為臺灣存託憑證（TDR）係屬「外國之其他具有投資性質之有價證券」，但司法實務上亦有判決認為，存託機構在我國內所發行之臺灣存託憑證，雖是「表彰存放於保管機構之外國發行人有價證券」，仍與該外國發行人在外國發行之「外國有價證券」本身有別，導致證券主管機關是否曾依證券交易法第6 條第一項規定之授權，將臺灣存託憑證核定公告為證券交易法上之有價證券，產生重大爭議。至於我國於2012 年1 月4 日增訂證券交易法第165 條之2 規定後，因已對於來我國第二上市或第二上櫃之有價證券，明定其有價證券在中華民國募集、發行及買賣之管理、監督，準用證券交易法第6 條規定，臺灣存託憑證成為我國證券交易法上之有價證券，應無疑義，但司法實務上竟有判決認為證券交易法第165 條之2 之規範對象與臺灣存託 憑證無關。本文期能釐清實務爭議之所在，並從解釋論之觀點提出管蠡之見，以杜爭議。 Prior to the stipulation of Article 165-2 of the Securities Exchange Act on January 4, 2012, the securities authority Identified by itself that it has announced the Taiwan Depositary Receipt was one of “other securities of foreign countries with investment nature”. However, some courts held that the Taiwan Depositary Receipt issued by the depositary institution in R.O.C. is still different from the “foreign securities” issued by the foreign company, although it is recognizing the securities in the account of the custodian institution which is issued by the foreign company. The major controversy is whether the securities authority has announced the Taiwan Depositary Receipt (TDR) belong to the securities under Paragraph 1, Article 6 of the Securities Exchange Act. As for the amendment of Article 165-2 of the Securities Exchange Act on January 4, 2012 in Taiwan, it has been identified Article 6 of the Securities Exchange Act shall apply mutatis mutandis to the secondary listing or second cabinet of the securities which issued by the foreign com-pany. That is the public offering, issuing, management and supervision in R.O.C. shall apply mutatis mutandis to the Article 6 of Securities Exchange Act. Therefore, there is no dispute about the Taiwan Depositary Receipt become the securities in the Securities Exchange Act. In fact, there are some courts held that the Taiwan Depositary Receipt does not regulated by the Article 165-2 of Securities Exchange Law. This paper will clarify the core point of the practical disputes, and put forward the views from the perspective of interpretation theory to eliminate the mentioned disputes.
