國內不良金融債權(NPL)市場之概況(四)——法令規則篇(中)

Православни икониикони文 / 張震律師

二、資產管理公司(AMC)收購金融機構不良債權,可以公開標購、協商議價、或以債作股等方式為之。

查金融機構合併法(以下簡稱本法)第十五條及第十八條第三項僅提供資產管理公司成立之法源基礎(請參拙著『國內不良金融債權(NPL)市場之概況(三)—— 法令規則篇(上)』),並就AMC收購不良債權之後的處理方式予以規範(容後詳述),至於金融機構應如何出售其不良債權?AMC又應以何種方式收購 NPL?本法並未明文規定。事實上,NPL之出售與收購,性質上為商業之交易行為,且與金融機構之於金融市場、AMC之於NPL市場的存活與競爭息息相關,自應回歸市場機制,由參與者自由競爭,法律就此即無規範之必要。即便是主管機關財政部,對此議題亦採取較為寬鬆的立場,茲分述如后:

1.金融機構得以公開標售或協商議價方式出售其NPL予AMC。

財政部90.05.01台財融(三)字第九○七三六○七○號函曾為如下釋示:「…五、金融機構得否自行與任何資產管理公司協商訂定價格出售其不良債權,而勿需公正第三人介入交易或鑑價乙節,金融機構出售不良債權之方式,一為委託『公正第三人』進行分類重組並評定價格後,公開標售予資產管理公司。另亦可由金融機構直接讓售不良債權予資產管理公司。」從而,金融機構可先後或同時與一家或多家AMC進行協商、議價,以出售其NPL,自不殆言。至於公開標售,實際上亦非必以先行委託所謂「公正第三人」(關於公正第三人的介紹,請參閱拙著『國內不良金融債權市場之概況(二)——產業結構篇』)進行NPL之分類、重組、評價為前提。事實上,以截至目前為止國內業已出售之新台幣3000億元之NPL而論,公開標售,仍占絕大多數。而在此絕大多數之公開標案中,其事先經公正第三人就NPL進行分類、重組、鑑價始予公開標售者,則未曾見。

0 thoughts on “國內不良金融債權(NPL)市場之概況(四)——法令規則篇(中)

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