| Summary: | 博士 === 國立臺灣大學 === 法律學研究所 === 95 === As a small and open economy, Taiwan is highly dependent on international trade in the process economic development. Foreign exchange transactions and fluctuation in the exchange rate are crucial to the business of international trade. As the pace of financial liberalization and globalization have been rapidly developing in Taiwan, resulting in faster inflow and outflow of capitals across the border, the regulations on foreign exchange and all its transactions become even more important in Taiwan.
Central banks are responsible for the regulations and control of foreign exchange in most countries. Their tasks include to maintain the stability of the internal and external value of the currency , and to take measures to adjust the demand for and supply of foreign exchange, in order to sustain an orderly foreign exchange market. Part of the central bank’s role as a regulator of foreign exchange includes the control and regulation of foreign exchange reserve assets and foreign exchange business.
Taiwan is a member of neither the International Monetary Fund (IMF) nor the World Bank. In addition to draw references from other developed countries and the IMF to set up relevant regulations, Central Bank of the Republic of China (Taiwan) also needs to take into accounts situations that are unique to Taiwan. How to establish a sound mechanism and its legal framework on the management of foreign exchange reserve assets, as well as using various investment strategies and risk management skills, are institutionally and functionally important and necessary.
As for the administrator in charge of foreign exchange business, the competent authority has revised and adopted all the relevant regulations in conform to the World Trade Organizations and the IMF after Taiwan becomes a WTO Member in January 2002. Furthermore, the Central Bank of the Republic of China (Taiwan) Act, as revised on 5 June 2002, has permitted entities other than banks that have been authorized by the Bank to deal with foreign exchange business. All these demonstrate that Taiwan is moving toward to new stage of foreign exchange liberalization.
However, there is a comparative lack of published literature which provide systematic and detail analysis on the legal basis, legal framework and relevant legal issues, including but not limited to the constitution, financial laws and regulations, concerning the control mechanism. In addition, several legal issues remain to be resolved and clarified. Firstly, the lack of a clear authorization of mandates amongst relevant agencies responsible for foreign exchange affairs often results in disputes amongst these agencies. Secondly, relevant laws and regulations are not comprehensive enough to provide guidance for financial institutions to apply and reply on.
In addition to the typical form of foreign exchange transactions relating to international trade, financial institutions have been introducing from abroad or designing their own different types of foreign exchange transactions. These new types of foreign exchange transactions are most regulated by private contracts that contain far more complicated legal rights and obligation. Lack of a comprehensive understanding from the perspective of civil code concerning these new types of transactions will affect the determination of legal effects resulting from these contracts, which might have negative impact on maintaining an orderly foreign exchange transactions from the private law perspective. The development of foreign exchange market, moreover, might also be affected. This thesis attempts to conduct detail analysis on various types of foreign exchange transactions contracts, including some of their standards clauses, and their legal rights and obligations from the perspective of civil code and consumer protection law with an aim of maintaining a sound legal order for foreign exchange transactions.
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