A Review of Financial Consumer Protection Act in Taiwan from the view of Japanese Law: the Observation of Suitability and the duty of disclosure

• Main Authors: Liao, yen-chen, 廖沿臻
• Other Authors: 蔡昌憲
• Format: Others
• Language: zh-TW
• Published: 2014
• Online Access: http://ndltd.ncl.edu.tw/handle/tp6hgy

碩士 === 國立清華大學 === 科技法律研究所 === 102 === This article first starts from the description of structured note in Taiwan, and describes the development of the Financial Consumer Protection Act (the “FCPA”) in Taiwan by chronological order. One of the reason of the FCPA legislating is that the judgments of structured note are inconsistency at the definition of causes of action and the standard of determination, which be showed by the analysis of the structured note related cases before the legislating of the FCPA. However, after the legislating of the FCPA, the judgments still can’t prove if the legislating of the FCPA really solves the problem brought by Lehman storm. Because the regulation of the suitability and the duty of disclosure of the FCPA consult the regulation of Japan, it's important to compare the regulation between Taiwan and Japan. For that reason, this thesis tries to describe the main acts of financial instrument regulation: Act on Sales, etc. of Financial Products (the ASFP) and the Financial Instruments and Exchange Act (the FIEA) in Japan. At the same time this thesis also illustrates the regulation of suitability and duty of disclosure of Japan. After understanding the regulation of Japan, the compare between Taiwan and Japan shows the difference. At the parts of the suitability, the FCPA imposes a liability without fault on financial services providers. However, Japan's the ASFP and the FIEA doesn't impose such strict liability, and the judgments in Japan use clear standard of quality and quantity when they determine the violation of the suitability. At the part of the duty of disclosure, compare with Japan, the judgments in Taiwan are still a little bit too formalized, and still not impose the financial services providers different liability when the providers face different consumers. Should we reconsider the liability without fault in the regulation of the suitability? Should the courts place more importance on substantial essentials when they judge the cases related to the selling of financial instrument? These issues remain to be considered and observed after the enactment of the FCPA.