| Summary: | 碩士 === 國立中正大學 === 財經法律系研究所 === 105 === Pursuant to paragraph 1 of Article 29 of the Banking Act in Taiwan, only banks are permitted to engage in the business of accepting deposits. The provision is stipulated in line with the principle of "professional operation of banking institutions". The purpose is to protect the interest of the public and safeguard financial stability. Pursuant to Article 29-1, the equivalent of deposits is defined with the purpose of prohibiting underground investment companies from accepting huge amount of capital without real investment behavior, which may expose the public and financial market to unacceptable risks and lead to financial disorder. Article 29-1 provides a supplementary explanation of illegal deposit-accepting practices. Violation of Article 29 and 29-1 is punishable by paragraph 1 of Article 125 that punishes non-banking institutions which engage in deposit-accepting business. Because the elements which constitute the crime are uncertain legal concepts, the explanations of these elements vary widely theoretically or in practice. For example, different standards may be applied to such elements as "unspecified multiple persons, multiple persons or unspecified persons", "absorbing capital", "contracted to give or give bonus or interest which is not in proportion to the principal". This article is intended to study the trend of real-life practice by analyzing court judgments and comparing the finding with theoretical views so that the uncertain legal concepts of the disputed provision may be applied in a manner much more properly and closer to jurisprudence.
In order to achieve the goal of capital-absorbing, operators of capital-absorbing usually work out various investment models as baits for absorbing capital from victims. The investment models normally contain factors for sidestepping laws, appealing to investors, and obtaining the trust of potential investors. Characteristics of capital-absorbing frauds include multiple behaviors, complicated behavior models, and wide scope of victims. In evaluating illegal capital-absorbing frauds, more than one provision of related laws may be applicable. Consequently contradiction may arise in the application of appropriate regulations. This article is intended to study the crime of taking deposits illegally against the Banking Act committed by non-banking institutions and the frauds punishable pursuant to the Criminal Code. Additionally, the banking behaviors on cyberspace seem to be out of appropriate monitoring, and operators of cyberbanking have become shadow banks. This article also studies if such shadow banks will become the vehicle for illegal capital-absorbing or if they, as non-banking institutions, commit the crime of running fund-raising business against the Banking Act.
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