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  • Interpretation
  • No.488
  • Date
  • 1999/07/30
  • Issue
    • Do Articles 11 and 14 of the Regulations Governing the Supervision and Taking-Over of Financial Institutions concerning purchase and assumption exceed the scope of authority as delegated by the Credit Cooperative Act and Banking Act, thus violating Article 15 of the Constitution for the protection of property right and being void?
  • Holding
    •        According to Article 15 of the Constitution, the property right of the people should be protected. Any restriction on the property right can be allowed only to the extent sanctioned by Article 23 of the Constitution, as enacted by law. Delegation by the legislative branch to the executive to implement the law by ordinance should be explicit, and the implementing ordinance should conform to the legislative purpose and be within the scope of the delegation. This is clear from our previous interpretations. Article 27, Paragraph 1, of the Credit Cooperative Act and Article 62, Paragraph 1, of the Banking Act are enacted to protect the interests of depositors and to maintain the stability of the financial system. Although Article 11, Paragraph 1, Subparagraph 3, and Article 14, Subparagraph 4, of the Regulations Governing the Supervision and Taking-Over of Financial Institutions are authorized by Article 62, Paragraph 3, of the Banking Act, delegation per se is insufficient. In the interest of protection of the people*s rights, not only should the substance of the law be in accordance with the Constitution, but a reasonable provision on the implementing of procedures and timely judicial remedies are also required. To implement the law appropriately, an ordinance of the executive branch delegated by law should prescribe appropriate procedures when the people*s rights are affected by administrative measures. The various measures contained in the abovementioned Banking Act, Credit Cooperatives Act and the Regulations Governing the Supervision and Taking-Over of Financial Institutions all materially affect the shareholders (members) of banks and credit cooperatives, managers and other interested parties, yet such Acts and Regulations provide only the administrative measures of the competent authority and are totally silent on the circumstances under which the opinions of shareholders, members, managers or interested parties may be sought or the opinions of local government (where financial institutions managed by such government are involved), are solicited before administrative decisions are made. The abovementioned regulation also permits the direct appointment of organs (institutions) or personnel as supervisors or conservators by the competent authority, allows the conservators to assume the power of management and the right to manage and dispose of property; the conservators and the competent authority may also decide on the purchase and assumption, in whole or in part, the operations, assets and liabilities of the relevant financial institutions, or affect a merger with another financial institution, all without taking into account the feasibility of a resolution by the shareholders’ (members) meeting, and without considering whether such financial institutions are in a position to provide appropriate funds, collateral or other effective means to meet their obligations in a timely manner. None of these is in accord with the purpose of the constitutional guarantee of the people*s property rights. Therefore, the competent authority should promptly appraise and amend the abovementioned Acts and Regulations.
  • Reasoning
    •        Article 15 of the Constitution provides that the people*s property right should be protected. Any restriction on the property right should be to the extent necessary as provided under Article 23 of the Constitution, and only by the enactment of laws. When explicitly delegated by the legislature, an ordinance promulgated by the executive branch is constitutional only when in accordance with the legislative purposes and without exceeding the scope of delegation, which has been repeatedly interpreted by this Yuan (See Interpretations Nos. 313, 423 and 480). Article 27, Paragraph 1, of the Credit Cooperative Act states: "When a credit cooperative violates laws, regulations, or its charter or cannot be operated soundly and tends to impair the interest of members or depositors, the competent authority may adopt the following measures: (1) annul various resolutions of legally required meetings, provided that, if the resolutions violate laws, regulations or the charter, they should be void ab initio; (2) remove managers and staff members, or order the credit cooperative to take measures against them; (3) restrict the distribution of compensation to directors or supervisors; (4) suspend or remove directors or supervisors; (5) suspend a part of the operations; (6) order the suspension of operation, taking of accounts, or a merger; (7) order the dissolution; or (8) other necessary measures." Article 62, Paragraph 1, of the Banking Act states: "When a bank, due to significant deterioration of its operations or financial condition, cannot meet its obligations or tends to impair the interest of depositors, the competent authority of the central government may order the suspension of operations and set a period for the accounting of its affairs, suspend its operation in part, appoint personnel to supervise management or appoint a conservator, or adopt other necessary measures, and may request said relevant authority to restrict the responsible persons from leaving the country.” All the abovementioned Acts are for the protection of the depositors and to maintain the stability of the financial system. Article 11, Paragraph 1, Subparagraph 3, of the Regulations Governing the Supervision and Taking-Over of Financial Institutions provides that the supervisor may assist the relevant financial institution to arrange the purchase and assumption, in whole or in part, of its operations, assets and liabilities. Article 14, Paragraph 4, of the Regulations provides that the conservator, when implementing his/her responsibility mentioned in Article 11, Paragraph 1, Subparagraphs 1 to 4 shall obtain the approval of the Ministry of Finance in advance. While based on the delegation of Articles 62, Paragraph 3, of the Banking Act, in the interest of the protection of the people*s rights not only should the substance of the law conform with the Constitution, but it should also make appropriate provisions for implementing procedures and timely judicial remedies. Only then will the constitutional purpose of safeguarding fundamental rights be fulfilled. An ordinance promulgated by the executive branch delegated by law, for the proper implementation of the provision of a law, in particular must provide for the procedures required in adopting administrative measures which may impact on people*s rights.     
      
    •        The abovementioned measures provided for in the Banking Act, the Credit Cooperatives Act, and the Regulations Governing the Supervision and Taking-Over of Financial Institutions seriously impact on the shareholders (members), managers and other interested parties of banks and credit cooperatives. Yet these Acts and Regulations provide only for the administrative measures to be adopted by the relevant authority, are totally silent on the circumstances in which the opinions of shareholders, members, managers or interested parties may be sought or the opinion of local government (where financial institutions managed by such government are involved) is solicited before administrative decisions are made. The abovementioned Regulations also allow the competent authority to appoint an organ (institution) or personnel as supervisor or conservator, without consulting the appointees, and allow the conservator to assume the power of management and the disposition and management of property, thus letting the conservator and the competent authority decide the arrangement for the purchase and assumption, in whole or in part, of the operations, assets and liabilities of the relevant financial institution, or to merge with another financial institution, without taking into account the feasibility of a resolution by the shareholders’ or members’ meeting of the relevant financial institution, or whether such financial institution is in a position to provide timely funding, collateral or other effective means to meet its solvency problem. None of these is in conformity with the constitutional guarantee of the people*s property rights. The abovementioned Banking Act, Credit Cooperative Act and Regulations Governing the Supervision and Taking-Over of Financial Institutions should be promptly reviewed and amended in accordance with this Interpretation. 
      
    •        To avoid the repeated occurrence of unsound management or insolvencies of financial institutions, the competent authority should review the totality of the prevailing supervisory framework to prevent any potential crisis. Insofar as the regulation of credit cooperatives is concerned, due regard should be accorded the provision of Article 145 of the Constitution on the encouragement and support of cooperative enterprises.  
      
    • *Translated by Professor S. M. Yu.
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