Country (region) to invest in international legal issues of research -Law applicable to real estate investment center

• Main Authors: Jan,Ya-Ru, 詹雅如
• Other Authors: Lai,Lai-Kun
• Format: Others
• Language: zh-TW
• Published: 2013
• Online Access: http://ndltd.ncl.edu.tw/handle/dc27c3

碩士 === 玄奘大學 === 法律學系碩士班 === 101 === In recent years, people have been highly interested in vestments, especially in the real estate sector. People whether they are foreigners, from across the Taiwan Strait, overseas Chinese, or even from Hong Kong and Macau, are all eager to take a part in the investment frenzy. However, actual investment deeds have been very rare. Of course, the phenomenon is made of multiple reasons. However, after this study, it is discovered that such a disproportional investment deed is a result of our excessive legal restrictions, verbose review process, plus our lack of FTA in services with other countries, all of which constitute an intangible barrier that scares away foreign investors. As for people from Mainland China, in addition to the influential political elements across the strait, we have quite a few real estate investment restrictions particularly on the Mainland investors. Consequently, the reality is that the international (regional) investments in Taiwan is actually a far cry from what we have imagined or manifested. In addition to the legal issues concerning international (regional) real estate investments in Taiwan, another focus of this study is the applicability of the local governing laws. Since international (regional) investments in the Taiwan real estate can bring in lots of legal issues and disputes which may not be all solvable with our local governing laws, mainly due to foreign elements, it is critical to discuss the applicability of the governing laws. To begin with, Chapter Two discusses the basic concept of real estate. Since we are concerned about real estate related issues, we need to well define "What is real estate" in the first place. So, we'll describe the meaning and features of real estate, and then further explore the definition, characteristics and target scope of real estate investments. Finally, we'll make a analysis from the viewpoint of the real estate investment market. Chapter Three discusses the opening of international (regional) investments, that is divided into two parts: foreign capitals and Mainland capitals. The discussion goes through the evolution of policies, regulations, restrictions and controlling measures. We begin with the foreign investments, which have two types: (1) direct investment; (2) indirect investment. The direct investment means foreigners can directly take their capitals to Taiwan for investments, going through the regulatory procedures based on the "Foreign Investment Regulations" and other collocation measures. The indirect investment, on the other hand, means investment by way of going through a third region. Of course, there is another emphasized discussion, that is the investments from across the other side of the Taiwan Strait, which come in a form of Mainland Capitals and the applicable governing law is the "Act Governing Relations between the People of the Taiwan Area and the Mainland Area." Chapter Four is about investment issues, where investment related world conventions and FTAs are discussed. An indispensible topic of the discussion is certainly the WTO, whose laws and regulations are the most representative among all the international trade and investment laws and regulations. The cross-border real estate investments rely on the open market and trade liberalization of the vested items, and this is what the TWO stands for. Therefore, this chapter begins with the introduction of the General Agreement on Trade in Services under the TWO. Chapter Five elaborates on the basic theory of governing laws and discusses the way of solving disputes resulted from real estate investments by foreigners, Mainlanders and overseas Chinese. On such occasions, we'll have to apply the "Law Governing the Application of Laws to Civil Matters Involving Foreign Elements", with which we can take the governing law approach to solve disputes. Since real estate investments belong to the scope of object rights, legal disputes resulted from foreign investments in Taiwan should comply with the "Law Governing the Application of Laws to Civil Matters Involving Foreign Elements", Article 38, Paragraph 1, which stipulates that "concerning object rights, the local laws where the object is at shall prevail." The standpoint of this legislation is that "the nature and scope of object rights attaching to local laws is the most recent common practices, with which the object rights are dominated and governed within the territory of the sovereign country where the objects are, while the local judges are prone to protect the local public interests and, as a result, people all over the world complying with the practice is deemed as a necessary means and it is sufficient to protect the legal rights of the parties concerned; thus the original Article 10 Paragraph 1 is enacted based on this legal principle." Chapter Six introduces ECFA and has a profound discussion of its purpose and connotation. Also discussed in this chapter is the "Cross-strait bilateral investment protection and promotion agreement" signed very recently in 2012 which, in accordance with Article 5 of the ECFA, settles the matters regarding the establishment of cross-strait investment protection mechanism. Chapter Seven is the conclusion and recommendations. Hopefully, the study results can provide the authorities some references for possible amendment and re-orientation of the legal regulations on the foreign and mainland investment capitals, and help them think how to make proper laws to attract foreign investments coming to Taiwan, without violating our national interests, and further install sound collocation measures to protect foreign investors, making them feel secure when they put their money on our land.