證券營業員法律責任之探討

Abstract

我國證券商經營受託買賣業務業已70年(民國38年迄今)，而我國將證券商及從業人員執行受託買賣業務納入監理亦已50多年(從民國57年制定證券交易法迄今)。曾經，營業員執行職務之違法行為須科以刑責，但自證券交易法89年修正刪除有關科以營業員執行職務刑事責任之規範後，迄今無相關之修正。但在目前法規體制架構下，營業員利用職務之便所進行之犯罪或違法行為仍層出不窮。考量營業員執行職務之行為影響市場交易與投資人之權益甚鉅，為維護市場交易秩序與安全，並能提供投資人一交易安全之投資環境，爰此，本文期欲從主管機關監管之角度出發，希望透過釐清證券商、營業員與投資人間之法律關係及法律責任，將實務上營業員可能發生之違法型態作一整理，試圖找出現行實務上未予釐清之問題，並透過參考美國現行監理機制，最後能歸納整理出對現行法規或監理措施之修正建議或因應之道，並對「究竟營業員執行職務之違法行為是否須受證交法規範課予刑事責任，抑或可採取維持現況並輔以其他配套措施加以預防」提出看法。

Securities firms (or Stock Brokerage firms namely) have been engaged in the business of buying or selling securities for 70 years (since the 38th year of the Republic Era) already. And this business have been regularized and supervised by authorities for almost 50 years (since Taiwan Securities Exchange Act was enacted in the 57th year of the Republic Era). In the past, malpractice by stock brokers was subject to criminal liability. However, since the 89th year of the Republic Era, Exchange Act has removed the relevant regulation on criminal liability subjected to stock brokers, there has been no relevant amendment on his legal liability so far. Under the current regulatory system, the crimes or illegal acts carried out by stock brokers by utilizing their positions are still emerging. The stock brokers serve a crucial role on performing his practice, affecting the capital market and investors largely. In order to protect investors and maintain a safe and sound capital market, this study first would try to clarify legal relations between stock brokerage firms, its associated persons (stock brokers namely) and investors. Secondly the study would summarize common types of stock broker misconduct, and try to find out the problems that have not been clarified in the current practice. Finally, the study would refer to the current US supervision, and try to propose some recommendations in response to current regulations or supervisions measures. Additionally, I would draw my opinion regarding “shall practice of stock brokers be regulated by the Securities Exchange Act, subjecting to criminal penalty” in this study.