論結構債之契約關係及指定用途金錢信託之法律性質 (Contractual Structure of Structured Notes and Legal Characterisation of Non-discretionary Trust)

本文以為，結構型產品若係架構為債券之形式，應屬證券交易法下之有價證券，若係直接於我國募集，或係由證券商受投資人委託於外國購買結構債之情形，本即應依既存證券法令規範相關發行、買賣與行紀之行為。此外，於我國之銀行透過指定用途金錢信託，受投資人委託投資外國發行之結構債之情形，仍然構成外國有價證券之買賣，而應依證券交易法之規定，事先向主管機關核准或申報生效，並提供公開說明書等文件，並於此基礎上，再檢討國內財富管理業務及指定用途金錢信託投資於金融商品之事前監理機制以及行為規範之建立。This article argues that if a structured product is documented as “notes”, it should be deemed as “securities” under the Securities Exchange Act in Taiwan. It should be regulated issuance, purchase or brokerage activities under securities regulations, if a structured note is issued directly in Taiwan or if a domestic investor authorized a securities broker to have it purchased in a foreign country on his behalf,. In addition, even if one invests in structured notes issued by a foreign company via a non-discretionary trust with a commercial bank, this activity should still constitute sales of foreign securities; and thus it should require registration and/or authorization from competent authorities before issuance and a prospectus must also be provided. On this basis, we may further examine the regulation and conduct of business rules of promoting investment products by way of a non-discretionary trust under the name of wealth management