The regulation of Taiwan depositary receipts under securities and exchange act and the liability of the depositary

• Main Authors: Wu, Yi Ju, 吳逸儒
• Other Authors: 林國全
• Format: Others
• Language: zh-TW
• Online Access: http://ndltd.ncl.edu.tw/handle/s59j4x

碩士 === 國立政治大學 === 法律學系 === 105 === Since 1992, the Financial Supervisory Commission in Taiwan allows to issue the Taiwan Depositary Receipt, then the first Taiwan Depositary Receipt had been listed on the Taiwan Stock Exchange Corporation (TWSE) in 1998, the Taiwan Depositary Receipt has been developed for 25 years. However, the basic question that whether the Taiwan Depositary Receipt belongs to securities on Taiwan’s Securities and Exchange Act or not is still no conclusion. Moreover, it caused the diversion between judges. Regarding to the judgment standards of securities on American act , also the purpose of Taiwan’s Securities and Exchange Act, this thesis thinks the securities on the Securities and Exchange Act should include these characters—“Circulation”,” Investment ” or called “the Investors' profit expectations” and ”necessity of investor protection”. Through examining foregoing characters, it is obviously that Taiwan Depositary Receipt should be regulated by the Securities and Exchange Act. Therefore, this thesis suggests the Financial Supervisory Commission in Taiwan must conduct the approval power actively, making it clearly that the Taiwan Depositary Receipt applies to Taiwan’s Securities and Exchange Act. Moreover, since the first Taiwan Depositary Receipt issued, it has occurred many times that the information does not synchronized between Taiwan and the original securities issued market, while Taiwan Depositary Receipt was just issued in Taiwan, the corporation which issued the original securities linked to Taiwan Depositary Receipt right applied to bankrupt, etc. When happened, investors were likely to focus on the liability for corporation which issued the original securities linked to Taiwan Depositary Receipt, instead of pursuing the role of the Depositary and its responsibility. Concerning the question, by referring to the position and obligation of the depositary under American Securities Regulations, hence reflect over the regulations of Taiwan. As to the corporation which issued the original securities linked to Taiwan Depositary Receipt, when issuing sponsored depositary receipt, should be identified as the “co-issuer” of the Taiwan Depositary Receipt, affording the strict liability of the securities issuer. It could not only make the Regulations Governing the Offering and Issuance of Securities by Foreign Issuers consistent with the Securities and Exchange Act, but also establish the liability to the corporation which issued the original securities linked to Taiwan Depositary Receipt. As to the depositary, it should be asked to afford the obligation of declaring and providing information about Taiwan Depositary Receipt, same as the corporation which issued the original securities linked to Taiwan Depositary Receipt. By means of assuring the approachability to the information, depositary has to bear the liability of assuring the information with accuracy and adequacy. Meanwhile, concerning to the depositary is not the owner of capital from Taiwan Depositary Receipt, if the depositary can prove that it provided the false statement with reasonable investigation and reasonable ground to believe the statement is correct, the depositary can reduce the liability for damages. By limiting the depositary liability to the realm of what it take from issuing the Taiwan Depositary Receipt, to balance the depositary’s right and obligation.