People’s freedom to choose occupations falls under the constitutional guarantee of people’s right to work under Article 15 of the Constitution. People’s occupations are closely related to public interests. Therefore, any subjective condition restricting the choice of occupations shall only be imposed by law or regulation promulgated under clear statutory authorization which is within the scope of Article 23 of the Constitution, and the purpose of imposing such subjective conditions shall be for important public interests and the means taken shall be substantially related to the end intended to be accomplished in order to be in accordance with the constitutional mandate of the principle of proportionality. Article 11 of the Constitution guarantees people’s freedom of speech to protect free communications of opinions to enable people to enjoy the opportunity to gather adequate information and to achieve self-fulfillment. Information furnished by commercial speeches shall fall under the constitutional guarantee of the freedom of speech if it is not false or misleading and helps the consuming public to make economically reasonable choices. However, the state may impose restrictions upon people’s freedom of speech for important public interest purposes as long as it does so by law or regulation promulgated under clear statutory authorization which is within the scope of Article 23 of the Constitution, and the means taken are substantially related to the end intended to be accomplished.
As amended on January 29, 1988, Article 18, Paragraph 1 of the Securities Exchange Act (hereinafter the Securities Act) prescribed that, “The operation of ……securities investment advisory enterprises……shall be approved by the agency-in-charge.” Paragraph 2 of the same Article prescribed that, “The matters with regards to the governance and supervision of the enterprises stipulated in the proceeding paragraph shall be promulgated by the Executive Yuan.”(Pursuant to Article 121 of the Securities Investment Trust and Advisor Act enacted on June 30, 2004, the prescription of Article 18 of the Securities Act with respect to the securities investment advisory enterprises is no longer in effect.) As amended on February 6, 2002, Article 175 of the Securities Act prescribed that, “Any person who violates prescriptions under…… Article 18, Paragraph 1……shall be punished with imprisonment for no more than two years, detention, and/or a fine of not more than NT$1.8 million.” Pursuant to the statutory authorization of Article 18, Paragraph 2 of the Securities Act, on October 9, 2000, the Executive Yuan promulgated the Rules Governing Investment Advisory Enterprises (hereinafter the Governing Rules), which on November 1, 2007 [2004 under “Relevant Laws” above.], were declared no longer applicable under Article 121 of the Securities Investment Trust and Advisor Act. Article 2, Paragraph 1 of the Governing Rules prescribed that, “The term ‘securities investment advisory enterprises’ as used in the Governing Rules refers to those enterprises which are in or manage the business of providing securities valuation analyses, investment judgments and recommendations to, or execute securities investment transactions for, their clients in exchange for remunerations.” Paragraph 2 of the same Article prescribed that, “The remunerations as prescribed in the proceeding paragraph include any benefit received directly or indirectly from a client or from third parties.” Article 5, Paragraph 1 of the Governing Rules prescribed that, “A securities investment advisory enterprise may engage in the following business activities whose scopes and categories are pre-approved by the Securities and Futures Commission: (i) Accepting a client’s retention to provide securities investment-related researches, analyses, recommendations or advice; (ii) Managing a client’s discretionary investment account; (iii)Issuing securities investment-related publications; (iv) Holding or providing securities investment-related lectures or courses; and (v) Other related business as approved by the Securities and Futures Commission.” According to the foregoing law and regulation, those who want to conduct the business prescribed by Article 5, Paragraph 1 of the Governing Rules shall be pre-approved by the agency-in-charge under Article 18, Paragraph 1 of the Securities Act; one who fails to do so will be subject to criminal penalty as prescribed in Article 175 of the Securities Act.
Although the Securities Act is silent with respect to the definition of the term ‘securities investment advisory enterprise’ while taking into account the special characteristics of our securities market and the development of our securities investment advisory industry, the scope of the foregoing prescribed, approval-needed business includes providing information, analyses, recommendations and advice on securities investment or managing clients’ discretionary investment accounts according to the legislative intent of Article 18 of the Securities Act and to the then current practices of the securities investment industry before the amendments of the Governing Rules on October 9, 2000, limiting the scope of business to provide securities investment information, analyses, recommendations and advice but not to the management of clients’ discretionary investment accounts. Thus, the definition of a securities investment advisory enterprise as so prescribed under Article 2 of the Governing Rules, as being an enterprise which is in or manages the business of providing securities valuation analyses, investment judgments and recommendations to, or executes securities investment transactions for, its clients in exchange for remunerations, directly or indirectly, did not exceed the scope of those securities investment advisory enterprises that Article 18 of the Securities Act was intended to regulate. Because holding or providing securities investment-related lectures or courses will involve providing securities investment information, analyses, recommendations and advice, Article 5, Paragraph 1, Subparagraph 4 of the Governing Rules expressly prescribed holding or providing securities investment-related lectures or courses as regulated and pre-approval required securities investment advisory business activities.
Hence, pursuant to the abovementioned Article 18, Paragraph 1 of the Securities Act and Article 5 of the Governing Rules, people who want to conduct the business activities of holding or providing securities investment-related lectures or courses shall be pre-approved as qualified securities investment advisory enterprises by the agency-in-charge and shall meet certain criteria with respect to professional qualifications and capitalization (See Articles 4 and 23 of the Governing Rules.). Accordingly, the foregoing law and regulation imposes subjective conditions restricting the freedom to choose occupations upon those who want to conduct the business activities of holding or providing securities investment-related lectures or courses. The legislative intent of Article 18 of the Securities Act is to protect investment and to develop the national economy in light of the risk and sophistication involved in securities investment and taking into account the fact that securities investment advisory enterprises are closely related to the maintenance of an orderly securities market and protection of securities investors; therefore, the formation and governance of securities investment advisory enterprises shall be subject to the approval and supervision of the agency-in-charge in order to promote and strengthen their sophistication (See Article 1 of the Securities Act.). In accordance with the legislative intent and statutory authorization of Article 18 of the Securities Act, the Governing Rules were promulgated by the agency-in-charge. In sum, Article 18, Paragraph 1 of the Securities Act and Article 5, Paragraph 1, Subparagraph 4 of the Governing Rules were enacted and promulgated with a view to establish the sophistication of securities investment advisory enterprises, to ensure their clients will receive faithful and professional quality service, and to prevent the occurrence of events that will disturb the market order. The end of Article 18, Paragraph 1 of the Securities Act and Article 5, Paragraph 1, Subparagraph 4 of the Governing Rules intended to be accomplished falls under the important category of public interests and is consistent with the scope and mandate of Article 23 of the Constitution.
People who hold or provide securities investment related-lectures or courses do so with a view to furnish securities investment-related information. The information furnished is associated with economic activities and belongs to the expression or distribution of personal securities investment opinions or information which falls under the constitutional guarantee of the freedom of speech under Article 11 of the Constitution, if there is no false or misleading statement, and gives participants an opportunity to receive securities investment information. However, pursuant to Article 18, Paragraph 1 of the Securities Act and Article 5, Paragraph 1, Subparagraph 4 of the Governing Rules, holding or providing securities investment-related lectures or courses is within the scope of regulated business activities of securities investment advisory enterprises and can only be conducted by qualified securities investment advisory enterprises. Thus, Article 18, Paragraph 1 of the Securities Act and Article 5, Paragraph 1, Subparagraph 4 of the Governing Rules restrict not only people’s freedom of occupation, but also people’s freedom of speech as well. Although we have held that the end of Article 18, Paragraph 1 of the Securities Act and Article 5, Paragraph 1, Subparagraph 4 of the Governing Rules is to uphold the important public interests, the means taken shall be substantially related to the end intended to be accomplished in order to be in accordance with the constitutional mandate of the principle of proportionality under Article 23 of the Constitution and thus is not in contravention to the constitutional guarantees of people’s freedom of occupation and freedom of speech.
From the perspectives of managing or conducting business activities of providing securities investment information, analyses, recommendations and advice, the purposes of Article 18, Paragraph 1 of the Securities Act and Article 5, Paragraph 1, Subparagraph 4 of the Governing Rules prescribing securities investment advisory enterprises are to establish the sophistication of securities investment advisory enterprises, to ensure their clients will receive faithful and professional quality service, and to prevent the occurrence of events that will disturb the market order. Therefore, according to the legislative intent and the constitutional guarantees of freedom of occupation and freedom of speech, those who conduct the business of holding or providing securities investment-related lectures or courses are to do so with a view to provide general securities investment information and are not to conduct such business with a view to furnish, directly or indirectly, valuation analyses, recommendations or advice on individual securities (For instance, though the securities investment information furnished during securities investment lectures or courses belongs to a specific category of securities, the lectures or courses will be deemed as ones that are held or provided in order to furnish indirectly securities investment information, analyses, recommendation and advice if the furnished securities investment information objectively has the substantial effects of leading to the valuation analysis of individual securities.), and shall not be subject to the restrictions imposed by the abovementioned law and regulation. Article 18, Paragraph 1 of the Securities Act and Article 5, Paragraph 1, Subparagraph 4 of the Governing Rules prescribe that people who want to conduct the business activities of holding or providing securities investment-related lectures or courses shall be pre-approved as qualified securities investment advisory enterprises by the agency-in-charge and shall meet certain professional qualification and capitalization criteria. After taking into account the structural characteristics of securities investors in Taiwan’s securities market and the circumstances of the professional system of the securities investment advisory industry, we are of the opinion that the means taken under Article 18, Paragraph 1 of the Securities Act and Article 5, Paragraph 1, Subparagraph 4 of the Governing Rules are substantially helpful to realize the end intended to be accomplished by the law and the regulation at issue. We are also of the opinion that the scope of regulated securities investment lectures or courses is substantially helpful to establish the sophistication of securities investment advisors and to protect securities investors. Hence, we hold that the means taken and the end intended to be accomplished of Article 18, Paragraph 1 of the Securities Act and Article 5, Paragraph 1, Subparagraph 4 of the Governing Rules prescribing that only qualified securities investment advisory enterprises approved by the agency-in-charge can hold or provide securities investment-related lectures or courses are substantially related, are in accordance with the principle of proportionality, and are not in contravention to the constitutional guarantees of freedom of occupation and freedom of speech.
*Translated by Professor Chun-Jen Chen.