- 英文摘要
- One of the key components of Article 125-2 of the Banking Act of the
ROC is breach of fiduciary duty. However, there has been little academic
inquiry into what constitutes one and even less literature on how it is
determined in practice. Therefore, the aim of this thesis is to explore the
elements of “breach of fiduciary duty” and to confirm whether an operable
and referenceable standard has already been formed in courts. The results
may serve as a reference for future amendments to the Banking Act
regarding breach of fiduciary duty.
Based on observational analysis, the judgements made by the Supreme
Court and the Taipei District Court of the ROC between Jan 1, 2000 and
June 6, 2019 are examined. The purpose is to discern how the elements of
breach of fiduciary duty pursuant to Article 125-2 had been operated and to
carefully categorize the judgments.
Findings conclude that in trial, the Taipei District Court first decides
the nature of the duty the party had been entrusted, and then looks into
different elements accordingly. Currently, it seems that the judgements for
the violations of four types of duty can already be characterized.
- 目次
- 、前言
貳、現行法與最高法院觀點下銀行法特別背信罪之罪質構造
一、銀行法125 條之2 沿革脈動
二、最高法院對銀行法特別背信罪之闡釋
（一）本罪規範目的
（二）本罪要件之闡述
（三）行為主體
（四）違背職務之標準
（五）本罪損害之認定
（六）本罪為故意犯及意圖犯
（七）本條第1 項後段及第2 項之解釋
（八）本條與普通刑法背信罪之關係
三、現行法及最高法院裁判解釋銀行法特別背信罪違背職務之困
境
參、臺北地院裁判對銀行法特別背信罪違背職務要件之判準要素
一、臺北地院裁判見解之巡歷
二、彙整臺北地院裁判見解後之初步研判
肆、以臺北地院裁判見解作為本罪違背職務判準類型化之初步嘗試
伍、結論
