文 / 張震律師
本文先前曾介紹過關於國內不良金融債權市場之形成原因及其經過，以及NPL市場蓬勃發展之後，所帶動之新興產業的種類及其彼此間之關聯。至於，國內外的資產管理公司（Assets Management Company，簡稱AMC）身處於群雄並起之NPL殺戳戰場，如何進行這場顫憟遊戲？其遊戲規則如何？乃至身為主管機關之財政部（金融局）又是如何規劃這場「年度大賽」？又業已制定或頒布了那些法律及行政法規供金融機構及AMC業者一體遵循？實為一有趣至極的問題。
事實上，台灣的金融危機問題由來已久。尤其在民國八十六年亞洲金融風暴之後，八十七年因地雷股效應，引發本土性的金融風暴，當時國內銀行業的營運狀況，已是江河日下。不幸地，八十八年又逢九二一大地震，於經濟環境的衝擊亦非同小可。八十九年政黨輪替之後，內有朝野對立，政治不安，造成資金外移；外有美股重挫，引發全球股市危機，以致國內股市、房市一洩千里。加上失業率日漸攀升，企業倒閉、外移者眾多，銀行之逾放情形乃日益惡化。因此之故，八十九年十月間，當時的行政院財經小組，面對國內險峻的經濟情勢，乃於其擴大會議中作出：「引進國際資產管理公司（AMC），加速我國金融事業現代化。」之結論。希望藉由外國資產管理公司的龐大資金，及其較本國銀行更為先進的金融專業技術（Know How），協助處理本國金融機構之不良債權（Non—Performed Loans，簡稱NPL）。為此，於八十九年十二月十三日公布施行之「金融機構合併法」（以下簡稱本法），首先賦予了資產管理公司設立之法源基礎。而此一政策之開放，實為政府大力從事金融改革之一環，而與金融控股公司之成立，金融重建基金（RTC）之設置，金融資產證券化之推行等重大金融法案及政策交相呼應。以下分述之：
一、AMC得以信託公司、一般公司、或在國內設立分公司之方式成立。
本法於第十五條明定：「以收購金融機構不良債權為目的之資產管理公司，其處理金融機構之不良債權，得依下列方式辦理：…」AMC即依此規定取得設立之法源依據。至於其設立之方式為何？本法並未明文規定，惟財政部90.05.01台財融（三）字第九○七三六○七○號函（下簡稱90.05.01函）對此曾有釋示：「資產管理公司如以一般公司設立，應依據公司法規定向經濟部申請設立，而不需向本部申請許可。如擬以信託公司方式成立，則應依據本部發布之『信託業設立標準』，向本部申請許可設立，其最低實收資本額為五十億元。」而外國公司本即得依公司法申請設立在台分公司，從而，AMC可以一般公司、在台設立分公司、或成立信託公司之方式設立。且依前二種方式設立時，無需經財政部之許可，亦無資本額之限制。
然則，AMC既由本法賦予其法源基礎，而本法非但以「金融機構合併」為名，且明定本法之主管機關為財政部（第三條參照），則若謂資產管理公司非屬金融機構，其設立無須財政部之許可，於邏輯上似乎難以想像。何況，「商業銀行得向主管機關申請投資於金融相關事業。」「商業銀行投資金融相關事業，其屬同一業別者，除配合政府政策，經主管機關核准者外，以一家為限。」「所稱金融相關事業，指銀行、票券、証券…及其他經主管機關認定之金融相關事業。」銀行法第七十四條第一項、第四項第二款、第五項分別定有明文。且前揭財政部90.05.01函亦認定：「商業銀行如投資符合金融機構合併法第十五條所稱之資產管理公司者，得依銀行法第七十四條認定屬金融相關事業。」準此，財政部顯將AMC定位為「金融相關事業」，而不認定其為「金融機構」，是否合理？誠有待商榷。況AMC既以收購金融機構之不良債權為其設立目的及主要業務，於金融業之生態，自屬息息相關，然其成立卻無須財政部予以把關；反之，商業銀行欲轉投資AMC時，卻須經財政部之核准，且原則上以一家為限。兩相比較，實有輕重失衡之處。而於財政部之金融監理，亦恐有難期週延之虞。（待續）
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