論證券交易法上非常規交易罪與特別背信罪之實證研究: 以真假交易為討論核心

As corporate corruption became rampant, including draining funds and misappropriating company assets,“the special breach of trust in securities”of the Subparagraph 3, Paragraph 1, Article 171 of the Taiwan Securities and Exchange Act was added and promulgated on 28 April,2004, to maintain the order of economic, finance and business activities, while protecting the investors. In recent criminal judgments, some courts hold that “the special breach of trust in securities” shall be distinguished from “the non-arm’s length transaction” of Subparagraph 2, Paragraph 1, Article 171 of the Securities and Exchange Act. The Subparagraph 2, Paragraph 1, Article 171 applies only to real transactions, while the application of Subparagraph 3, Paragraph 1, Article 171 is confined to wash sales. Also, some courts hold that if a transaction passed off as anormal trading but was in reality a trading to the detriment of the corporation, and was obviously different from general trading, such transaction shallall within the grounds of “the non-arm’s length transaction.” Whether the application of “the special breach of truth in securities” or “the non-arm’s length transaction” depends on the realness of the transaction still remains unclear as the courts do not hold a consistent opinion in this respect. This article aims to propose a solution to put an end to these legal disputes by way of analyzing the constitution, the legal interests, the legislative purposes and theoverlapping of penalties of “the non-arm’s length transaction” and “the special breach of trust in securities;” and investigating the controversies between the theories and the criminal cases.