| Abstract: | 英國經過二十年之努力，從自律規範進展到FSA Act（法律架構下之自律規範），再從FSA Act發展到FSMA 2000，成就單一規範主體FSA，整合銀行、證券、期貨與保險。金融服務活動熔於一爐，金融監理也集FSA一身於大全。 這樣的演變令人不可思議，但其所展現之規範理念更值吾人深思。以律師為例，傳統上很難將其與金融服務連結。然而，英國突破行業迷思，改以受規範行為與指定投資為規範之經緯，律師可能碰觸之防線即昭然若揭。律師可能成為存款收受者；可能成為提供投資建議者；可能為客戶保管資產等。這些行為若是銀行、投顧業或信託業者所為，將其納入管理，吾人將習以為常。但是，當律師被列在FSMA 2000之專章中，並分別提出其應受規範及應予豁免之架構時，我國即應引為警惕。因為在我國法律中向來缺乏此種思維。\\r 是以本文進一步討論我國現行法規下所存在之漏洞與瑕疵。不僅證券之定義過於保守；許多行為態樣不予管制，甚至於相同行為卻因主體不同而受不同規範。從FSMA 2000對律師之規範所表彰之金融服務整合，我國未來仍有相當空間重構法規，使金融服務整合之理念落實，也使金融監理統一之目標達成。
Over the last two decades, the British financial regulatory system has gone through several stages, i.e. from an almost purely self-regulated system to “self-regulation within a legal framework.” It has then further developed towards a single regulator, the Financial Services Authority (FSA), with the result that banking, securities, futures, and insurance all come under the supervision of the FSA. While such an evolution seems incredible, the policy of regulation deserves applause. For example, the role of lawyers has been deemed to be legal profession-oriented. It can hardly be imagined that lawyers might engage in financial activities, and should thus be under the supervision of relevant financial regulators. Nevertheless, British legislation (both the Financial Services Act 1986 and the Financial Services and Markets Act 2000) has abolished the traditional demarcation among the different financial sectors in regard to regulated activities and specified investments. As a result, a lawyer may take money from his clients as if accepting a deposit, he may provide clients with investment advice, and he may also safeguard and administer his clients’ assets. All these activities, if carried on by banks, investment advisers or trustees, should be regulated based on their characteristics, but not by lawyers based on traditional understanding. In Taiwan’s legislature, by contrast, such a vivid imagination is lacking. Besides, the activities conducted by securities houses, futures traders, banks, investment advisers and managers are divided into different sectors and are thus supervised according to different laws and regulations. The legislative system exhibits many defects, such as an inadequate definition of securities. It also indicates that firms engaging in the same kinds of financial activities are placed on different playing fields. We hope to learn from the FSMA 2000 in order to enhance the financial services regulatory framework in Taiwan, even if we do not propose transplanting the whole of the legislation. |
