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  • Interpretation
  • No.214【Under Translation】
  • Date
  • 1987/04/17
  • Issue
    • Do the Executive Yuan Order, stating that “credit cooperatives can no longer be established in any township,” and the Provisional Regulation Governing the Relevant Supervising Financial Authorities Authorized to Manage Credit Cooperatives Uniformly, contradict the Constitution?
  • Holding
    •        Credit cooperatives involved in the transaction of some banking business belong to financial enterprises.  Accordingly, they shall be supervised by the state by law.  Executive Yuan Order T.C.T. No. 5148 issued on July 24, 1964, stating that “credit cooperatives can no longer be established in any township” and the Provisional Regulation Governing the Relevant Supervising Financial Authorities Authorized to Manage Credit Cooperatives Uniformly promulgated through Directive T.C.C.T No. 13957 issued on June 5, 1970, by the Ministry of Finance are measures made under its legal duty and authorization, used to manage financial institutions in consideration of actual needs for social economy and finance.  Referring to Articles 26, 29 of the Banking Act and Articles 5, 10, of the Cooperative Act, the measures mentioned above do not contradict Article 14 and Article 145, Paragraph 2, of the Constitution.
  • Reasoning
    •        That the people have the freedom of association is clearly stated in Article 14 of the Constitution.  Also, that the cooperative enterprises shall be encouraged and assisted by the state is also provided in Article 145, Paragraph 2, of the Constitution.  However, that the financial institutions shall be supervised by the state by law is clearly stated in Article 149 of the Constitution.  Although cooperatives are a kind of association, matters such as approving loans and receiving deposits carried out by a cooperative and prescribed in Article 3, Subparagraph 4, of the Cooperatives Act are transactions conducted by the banking business.  Thus, credit cooperatives belong to financial enterprises and shall accordingly be supervised by the state by law.  Article 26 of the Banking Act states: “The central competent authority may, in consideration of domestic conditions of economy and finance, restrict the enlargement of a bank and its branch in a specific area.”  That an institution other than a bank cannot transact banking business except as prescribed by law is otherwise also stated in Article 29, Paragraph 1, of the same Act as above.  Furthermore, in respect to the cooperative, which receives deposits and dispenses loans, Article 5 of the Cooperatives Act prescribes restrictions regarding the receiving of deposits from persons other than members.  In addition, according to Article 10 of the same Act, the competent authority may make the decision of approval or not.  Summarily reviewing the intentions of the above provisions, based on its duty as the supreme authority of the state, the Executive Yuan issued Order T.C.T. No. 5148 on July 24, 1964, ruling that “The credit cooperatives can no longer be established in any township,” and Order T.C.T No. 12289 authorizing the relevant supervising financial authority to oversee the management of credit cooperatives uniformly.  Hence, the Ministry of Finance promulgated the Provisional Regulation Governing the Relevant Supervising Financial Authorities Authorized to Manage Credit Cooperatives Uniformly through Directive T.C.C.T No. 13957 on June 5, 1970, and its revision through Directive T.C.C.T. No. 2918 in 1971.  Those were measures made by the Executive Yuan and the Ministry of Finance under their legal duties and the relationship of authorization used to manage financial institutions on consideration of actual needs for social economy and finance at that time.  They did not contradict Article 14 and Article 145, Paragraph 2, of the Constitution.  It is certain that the requirements for the establishment of a credit cooperative and the matters to be managed shall, on consideration of the actual conditions of social economy and finance, be adjusted by law from time to time. 
      
    • *Translated by Ching P. Shih
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