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  • Interpretation
  • No.675
  • Date
  • 2010/04/09
  • Issue
    • Does the provision in the Act for the Establishment and Administration of the Financial Restructuring Fund, which prohibits distressed or non-performing financial institutions from paying out non-deposit liabilities unconstitutional ?
  • Holding
    •     Article 4, Paragraph 5 of the Act for the Establishment and Administration of the Financial Restructuring Fund, amended as of June 22, 2005, provides that “[s]ubsequent to the promulgation of the amended Act, when the competent authority or the central competent authority for agriculture finance handles a distressed financial institution, non-deposit debts of said institution will not be paid off. ” It is meant to enhance the utility of the Financial Restructuring Fund of the Executive Yuan, to protect the rights and interests of the depositors of the financial institution, and to stabilize the order of financial credibility, thus carries appropriate objectives.  Given that there is a reasonable nexus between the means and the accomplishment of these legislative objectives, there is no contravention to Article 7 of the Constitution.
  • Reasoning
    •     The Petitioner requested an interpretation on the constitutionality of Article 4, Paragraph 5 of the Act for the Establishment and Administration of the Financial Restructuring Fund of the Executive Yuan, as amended on June 22, 2005 (hereinafter disputed provision), which was applied in the civil judgment of the Supreme Court, (97) Tai Shun No. 2252 (2008)(hereinafter final judgment). The final judgment, applying the illustrations in the memorandum docketed as Gin Guan Yin (2) No. 09700095310 (April 16, 2008) and issued by the Financial Supervisory Commission of the Executive Yuan, held that, The Chinese Bank (i.e., the financial institution being taken control) should tentatively halt its compensation of non-deposit debts upon being taken over. That memorandum, in turn, also relied upon the disputed provision by indicating that, in managing the non-performing institutions, the governing authority is prohibited from paying out non-deposit debts. It follows that the final judgment has cited the disputed provision as the basis for its reasoning and the disputed provision should, thus, be deemed to be applied by the final judgment. This should be pointed out first.
      
    •     The principle of equality prescribed under Article 7 of the Constitution is not meant to be equality only in form nor in an absolute and mechanical sense. Rather, it aims to guarantee the substantive equal protection under the law. The legislative body, based on the value system of the Constitution and the purpose of enactment, may naturally consider the diversity of the regulated subject areas and provide reasonable differential treatment (see J. Y. Interpretation Nos. 485, 596).  
      
    •     The original Article 5, Paragraph 3 of the Act for the Establishment and Administration of the Financial Restructuring Fund, as amended on July 9, 2001, provided: “The Central Deposit Insurance Corporation, in compliance with Article 15, Paragraph 1 and Article 17, Paragraph 2 of the Deposit Insurance Act, may apply for and dispose of this Fund to pay out in full the deposit and non-deposit liabilities of the distressed financial institution….”   This provision was amended on June 22, 2005 and became Article 4, Paragraph 5: “Subsequent to the promulgation of the amended Act, when the competent authority or the central competent authority for agriculture finance handles a distressed financial institution, non-deposit debts of said institution will not be paid off.”    Thus the scope of the coverage by the Financial Restructuring Fund of the Executive Yuan (hereinafter Restructuring Fund (Resolution Trust)) for distressed or non-performing financial institutions was revised from the original full compensation for deposit and non-deposit liabilities to non-deposit debts only.  Hence, for non-deposit liabilities incurred after the 2005 amendment to the above provision, they will no longer be compensated.  That the disputed provision, reverted to the system of deposit insurance and provided differential treatments between deposit non-deposit debts is meant to enhance the utility of the Financial Restructuring Fund of the Executive Yuan, to protect the rights and interests of the depositors of the financial institution, and to stabilize the order of financial credibility.(see Article 1 of the Deposit Insurance Act and Article 1 of the Act for the Establishment and Administration of the Financial Restructuring Fund), thus carries appropriate objectives. 
      
    •     Whether the scope of compensation for the Restructuring Fund should be limited to deposit liabilities or should also cover non-deposit liabilities involves the issue of how to effectively appropriate and utilize the Restructuring Fund.  The legislative body may indeed make proper decisions after examining the financial condition of the state and the necessity to maintain the order of the financial market. Besides, the nature of deposit liabilities is different from that of non-deposit liabilities after all. The establishment of the Restructuring Fund is to ensure depositors’ confidence in financial institutions, so as to stabilize the order of financial credibility.  In considering the limited scale of the Restructuring Fund and to reduce its burden so that the Restructuring Fund can be operated more effectively, the legislative body amended the disputed provision in the Act to exclude payout for non-deposit liabilities. Given that there is a reasonable nexus between the means and the accomplishment of these legislative objectives, there is no contravention to Article 7 of the Constitution.
      
    •     With regard to the question raised by the Petitioner alleged that his property right and the freedom of contract was infringed by the governing authority’s taking control over the distressed or non-performing financial institution under Article 62 of the Banking Act, no specific illustrations were provided on how his rights protected by the Constitution was infringed. Furthermore, with regard to the Petitioner’s request for supplementary interpretation to J.Y. Interpretation No. 488, since the final judgment that causes the present petition did not apply that Interpretation, no supplementary interpretation is permitted.  Thus this part of the petition is deemed to be not in conformity with Article 5, Paragraph 1, Sub-Paragraph 2 of the Constitutional Interpretation Procedure Act and is hereby dismissed in accordance with Sub-paragraph 3 of the same Act.
      
    • Translated by Dr. Cheng-Hwa Kwang.
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