A Study on Organizational Law of Financial Supervision Commission and its Related Regulations

• Main Authors: Ching-Che Tai, 戴敬哲
• Other Authors: 陳志龍
• Format: Others
• Language: zh-TW
• Published: 2008
• Online Access: http://ndltd.ncl.edu.tw/handle/71000512953516247751

碩士 === 國立臺灣大學 === 法律學研究所 === 96 === The major function of banking and capital markets is enabling those who use the idle capital in the market, thus enhancing the efficiency of the allocation of resources. Thereof, a state’s overall economic development is highly affected by stability of banking and capital markets. To built-up a stable banking and capital markets becomes one of the foremost goals for developing and developed countries to pursue. The primary aim of financial supervision is to maintain financial stability. States through application of authorities to intervene the private economic transactions in the current banking and capital markets becomes an indispensable mechanism to maintain financial stability. The issues are related to the regulations of financial supervision institutions, which covering the aspects of organization laws, proceeding laws, and executive laws. Amongst those, organization laws are the constituent instruments of financial supervisory agencies and pertain to such issues as independency, the models of supervisory organization (distributed supervision or unitary supervision), and the internal organizational structures. Proceeding laws and executive laws demarcate the power and the responsibilities of supervisory agencies. Financial supervision can be divided into two fields, the first of which is financial management that involves “macroscopic” measures, and the second is financial supervision in its narrow sense that involves “microscopic” measures. However, the major principle of two fields: “flaw prevention” shall always precede “profit boost”. Additionally, both financial management and financial supervision require being independency. However, if the legislature cannot accept the concept of independent management, then have to consider setting up an institution of a pure supervisory agency. In the mean time, it shall be elucidated that independency and check-and-balance are actually complementary rather than contradictory. To vest supervisory agencies with independency is one of the purposes of establishing the Financial Supervisory Committee while the unitization of financial supervision is another. Nevertheless, the prescriptions of independency and check-and-balance are ambiguous in the current legislation. The Financial Supervisory Committee is thus merely purported to be an independent agency. As to the internal organizational structure of the Financial Supervisory Committee, the existing disputes concerning single or collective leadership and debates of whether adopt institutional supervision or not. The determinacy of power and responsibilities closely relates to the independency of the supervisory agency and the success of supervision. This pertains to the division of power and responsibilities between the financial supervisory agency and other agencies as well as issues of entrusting administrative authority to private agencies. Although the unitization of supervision has indeed eliminated many problems resulted from overlap of authority, the power and responsibilities of the Financial Supervisory Committee and a few other agencies still demand exposition. By and large, the drawback of the law of the organization of the Financial Supervisory Committee nests in the law’s ambiguity.