Closing Statement
Director Huei-Huang Lin
2008.12.04
Dear distinguished guests and all my students: Good afternoon everyone! Time sure flies by and our International Symposium today is drawing to a close. During the enthusiastic process of discussion, I personally witnessed how attentive and concentrated you all were. I can imagine how exhausted you all must be after having been involved in a whole day of intensive deliberation over these interesting issues. For any meaningful event to be well consummated well, having a fine closure is just as important as having a strong kick-off. Therefore, with your gracious permission, I as chairman of this Symposium would like to quickly offer a concise summary of our Symposium today.
We all know that over the past decade or more, Taiwan has made much headway in its political democratization which helped facilitate the prosperous development and brought more economic freedom to our overall society, so much so that Taiwan was unscathed by the Asian Financial Crisis of 1997.
However, invariably, in its single-minded pursuit of high economic growth, coupled by the enticing slogan of “opening up” and “freedom,” the power that be unwittingly allowed the corporations to have their own way. . . Eventually what surfaced were a host of sensational cases that startled the society and underlined the dire disorderliness in our financial and corporate sectors – everything ranging from insiders trading, the manipulation of stock prices by hyping-and-dumping, fraudulent accounting to defraud the investors at large, hollowing out of company assets that belonged to the investors, all the way to the intricate schemes of utilizing overseas paper company as scams.The crux of these financial problems all stem from a lax Corporate Governance which failed to fulfill its original function and a frail notion of Business Ethics. In fact I just received a call from a legislator who convey to me the following information: The World Economic Forum (WEF)issued a report today which shows that a ranking of Taiwan’s banking sector, previously raked at a fair standing (note: ranked as 100th in 2006-2007), has dropped to 117th in ranking, approaching the bottom of the barrel. Reportedly, the main reason for this sudden freefall was due to the dismal Corporate Governance in the banking sector; this again underscores the critical importance of Corporate Governance. Therefore, how best to strengthen the system of Corporate Governance and vigorously promote the notion of Business Ethics and Corporate Responsibility are probably the most important tasks at hand that require immediate attention and concerted resolve from the relevant governmental agencies, the legislative body and the judiciary.
In our International Symposium today, we focused mainly on the crime of “insiders trading” which is of particular concern to our society at large and the issue of “claiming for damages” which is of pressing relevance to those who are investors. On the one hand, a comparative look at the American legal system and its cases help clarify relevant legal issues so that our judiciary may then actualize the legislative purpose in a legal, sound and appropriate manner that conforms to our citizenry’s sentiment towards the law and accentuate the role that the judiciary play in preventing and restricting insiders trading so as to safeguard the rights and interests of the public investors. On the other hand, the real purpose of this Symposium is to allow members of our judiciary and our legal professionals to appreciate, through their first-hand experience in analyzing these cases, the critical role that Corporate Governance and Business Ethics play in the market economy of the new century.
From our analytical discussion of the cases today, we learned that the U.S. Supreme Court has launched the “Misappropriation Theory” via the O’Hagan case to broaden the definition scope of “insiders.” Based on the “Misappropriation Theory,” the U.S. Securities Exchange Commission (SEC) has outlined three non-exclusive instances that call for a duty of trust and confidence:
1.whenever a person expressly communicate to the source that discloses a particular information of his or her agreement to maintain confidentiality regarding the information of which he/she was informed, then he/she bears a duty of trust and confidence toward the source that disclosed the information;
2.when past history, mode of interaction, and previous practice indicate the existence of a duty of trust and confidence between the two parties;
3.whenever a person hears of an information from his/her spouse, parent, child, or sibling, unless it can be proven that no such relationship of trust and confidence exist between the parties.
Although some scholars have tried to broach the topic from a view point of legal theory and categorize “Misappropriation Theory” as being a subpart of “Fiduciary Duty,” it is my humble opinion that the abovementioned 3 instances of “insiders” as illustrated by the SEC all emphasized the societal value of “Trust,” "Mutual Reciprocity,” and “Human Relationship premised upon Ethics.” It may be more befitting to be named as the “Ethical Standards of Corporate Governance.”
Through the Dura case, the U.S. Supreme Court establishes the “Fraud-on-the-Market Theory” which is an attempt to establish the calculation criteria for damages amount by looking at the causation between the presumed losses and the misrepresentation. The purpose for establishing the “Fraud-on-the-Market Theory” on the one hand is to benefit the victim in claiming compensatory damages from the corporation in the federal courts, and on the other hand to prevent meritless claims by raising the burden of proof that the investor victims have to bear. Actually, the varieties of civil damages cases from illegal securities transaction are far too complicated to be resolved by a single “Fraud-on-the-Market Theory.”However, perhaps the way that the U.S. Supreme Court analyzed the issues can inspire us to ponder and squarely face this issue: Since there exists a huge disparity between the investors and the corporation in the context of the security exchange market, therefore looking at the disparity from the point of view of the Code of Civil Procedure, should we consider whether to appropriately expand the litigation arsenal of the victims in order to benefit the victims’ odds at claiming compensatory damages against the corporation at issue?Heightening the likelihood that the victims may claim against the corporation for damages that resulted from the illegal acts will reduce the illicit gains of the corporation. This should help eradicate the illegal motives and prompted the corporation to reflect upon the need to implement Corporate Governance and put Business Ethics into practice so that sustainable operation and development becomes feasible. I throw this issue out as food for thought for everyone.
The International Organization of Securities Commissions (IOSCO) has 85 nations as its members. In 1998 IOSCO published “The Objectives and Principles of Securities Regulation” (updated in 2003) and underscored the three objectives of securities market regulation as: the protection of investors; ensuring that markets are fair, efficient and transparent; and the reduction of systemic risks. Regarding the core principle of investor protection, “investors should be protected from misleading, manipulative or fraudulent practices, including insider trading, front running or trading ahead of customers and the misuse of client assets. ”This publication is worthy of our attention since it can serve as a beneficial footnote in outlining what the crime of “insiders trading” should seek to cover and also serve as a powerful proof of why the contemporary market economy needs to take on the Business Ethics’ view of the principles of Corporate Governance.
Once again, I want to thank Justice Randy Holland, Director John Pastor, Attorney Jeremy Anderson for your insightful comments and thoughtful analysis in guiding the discussion. I trust that the perspective and exposure of our JPTI students are expanded as a result of today’s Symposium. At the same time, I want to extend a warm “Thank You” to Professor Wallace WANG and Carol LIN; that our enrollees could perform so well as they have was due to your enthusiastic guidance. Therefore, I would like to invite all the JPTI students to please stand up and extend your warm applause toward these professors as a gesture of your heartfelt appreciation for them. I also wish to thank all the distinguished guests who have enthusiastically participated in our deliberation by providing us with your invaluable understanding and opinion. Your participation has greatly enriched our International Symposium. To the many colleagues at JPTI who have put in so much time and efforts in offering your unique share of contribution which made this Symposium a reality, I thank you indeed.
Last, but not least, I hereby announce that this International Symposium has come to a close. Farewell, my dear friends. We look forward to having the opportunity of meeting you soon at a gathering that is as intellectually stimulating and hopeful as this Symposium. Thank you all.
閉 幕 致 詞 稿
林所長輝煌
2008.12.04
各位貴賓、各位同學：大家午安！時間過的真快，轉眼間，今天的國際研討會已接近尾聲。在熱烈的研討過程中，我親眼目睹各位是那麼的認真、專注，相信經過這一整天密集的研討，大家一定會感到疲憊。但既有頭，就應有尾，這樣才可稱為「圓滿」。因此，請容許我這擔任大會主席的人，很快速地將這次研討會做一個簡要的總結。
我們知道，過去十餘年來，我們台灣因快速政治民主化，促進了社會的繁榮、富庶與經濟的自由、發展，安然渡過東亞金融危機。惟因一味追求高經濟成長，在自由、開放的美麗口號下，不經意的放任企業為所欲為，終於爆發多起轟動社會的內線交易、炒作股票、編造假帳欺騙投資大眾、設置海外幽靈公司，掩人耳目，五鬼搬運，掏空公司資產等重大事件，金融與企業發生嚴重失序現象，震驚社會。考其原因癥結，在於公司治理制度的鬆散、不彰，企業倫理的觀念薄弱、淪喪所致。 剛才有某位立委來電，告訴我一個信息說：今天的世界經濟論壇（WEF）報導，我國銀行的評比排名，由第100名掉到第117名，幾乎墊底。據稱，其主要原因就是銀行治理無方。此又再次明證公司治理的重要性。因此，如何強化公司治理制度，振興企業倫理責任觀念，殆為政府部門、立法機關、司法機關，以及企業本身當前所應共同嚴肅面對的重要課題。
今天的這場國際研討會，我們以社會大眾所矚目的「內線交易」犯罪，以及投資人念茲在茲的「損失索賠」等法律爭議為研討重心，一方面藉比較美國法制及其實務運作，用以釐清相關法律爭議，使我國的司法裁判能夠合法妥適，實現立法目的，符合國民法律感情，突顯司法機關在防制內線交易及保護投資大眾權益之角色擔負；他方面，其實真正的意涵，就是要藉用這些案例之研討，讓我們司法及法律專業人員能深刻體會，瞭然「公司治理」與「企業倫理」在新世紀市場經濟中所要居之關鍵地位。
從這次的案例研討中，我們發現美國聯邦最高法院以O’Hagan案創設「私取理論」，用以擴充「內線人」之涵攝範圍，美國聯邦證券交易管理委員會(SEC)爰依據該理論，在其所頒布的Rule 10b5-2後段中，例示列舉以下三種情形，皆應視為「內線人」：
(1)明示對所悉消息同意保密之人，對該消息來源，即負有被信任或保密的責任；
(2)依過去的歷史、模式、慣例，可認為雙方具有互守秘密之關係者；
(3)從其配偶、父母、子女、兄弟姐妹聽到消息者，但能證明其彼此間並未有保密關係者，不在此限
雖有學者，嘗以法學理論之觀點，將此「私取理論」歸類為「信賴關係理論」之一環，但依個人淺見，如句稽上開SEC所例示的三種「內線人」情形，皆在強調「信任」、「相互」及「倫常」等社會價值，稱為「公司治理的倫理觀」，毋寧更為貼切。
美國聯邦最高法院以Dura案之判決，建立所謂的「欺騙市場理論」，企圖藉以推定損失與不實陳述之間的因果關係，擇定賠償金額的計算基準，一方面增加訴訟索賠的機會，另方面則提升投資被害人的舉證責任，避免濫訟。其實，不法證券交易所生的民事賠償事件類型多樣複雜，當然無法僅以「欺騙市場理論」此單一理論來解決一切民事紛爭。但從美國聯邦最高法院對此案件之研析、推論中，是否可以啟發我們來正視思考：證券交易市場中的投資人與企業，既然地位懸殊，則從民事訴訟法的觀點，應否考量適度擴充被害人的訴訟利器，裨益其向企業追償損失？蓋提高被害投資人向企業求償因不法所致損失的機會，可藉此減少企業不法利得，鏟除其不法動機，促使企業深切反省，導正公司治理，落實實踐企業倫理，讓公司得以永續經營。這個問題就留給大家來思考！
國際證券管理委員會組織，全球計有85國為該組織成員)曾在1988年公告「證管目標及原則」 (於2003年更新)，其內揭櫫「證券市場管理的三大目標：保障投資人；確保市場公平、透明、有效率；減少組織性危機」，其中有關保障投資人之核心原則，就是：確保投資人不受誤導、操作、詐騙，亦即，禁止內線交易、搶先顧客交易、濫用客戶資產等行為。此項公告，正可為「內線交易」罪所保護之法益提供一個有利的註腳，也成為現代市場經濟採行「企業倫理觀的公司治理原則」的有力明證，頗值得我們高度重視。
再次虔誠感謝Holland大法官、Pastor處長，及Anderson大律師，您們精闢的講評、細膩的解析、諄諄的引導與智慧的啟發，相信我們司法官學員，一定視野洞開，獲益匪淺；同時我們也要向王文宇、林志潔二位教授致上無限的謝意，因為有您們的熱心指導，今天我們的學員才有這麼優異的表現。所以，我請各位同學起立，向這些師長，鼓掌致敬，表達我們衷心的謝意。也謝謝各位貴賓的蒞臨，熱烈參加研討，提出許多寶貴見解，為我們這次的國際研討會增色不少。本所許多同仁，不眠不休，為這次研討會，勞心勞力，默默奉獻，厥功甚偉，本人感激不盡。
最後，本人在此宣告：本次研討會圓滿、成功落幕。各位朋友，珍重再見；期望來日，我們有機會再次重溫像這次一樣充滿知性與希望的聚會。謝謝大家！
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