- 英文關鍵字
- Misuse of Legal Person, Money Laundering, Terrorist Financing, The FATF (2012) International Standards on Combating Money Laundering and the Financing of Terrorism & Proliferation Recommendations, DIRECTIVES (EU) 2015/849, Beneficial Owner, People with Significant Control Over a Company (PSC), Customer Due Diligence (CDD), The Article 22-1 of the Latest Company Act, Corporate Governance
- 英文摘要
- It is more and more common that “company” or “legal person”
becomes the vehicle to commit the crime such as “money laundering” or
“terrorist financing”. In order to prevent the misuse of legal persons for
money laundering or terrorist financing, more and more countries or
international organizations in the world aremaking efforts to consider and
conduct various methods for solutions.
One of the most efficient ways to prevent the misuse of “company” or
“legal person” taken by Financial Action Task Force (FATF) and European
Union (EU) is to try to find out who the beneficial owner is of a “company”
or “legal person”. Specifically, the checking process has to achieve to the
level of “natural person”. That means the authority of each country has to
make sure it is competent to get “transparent” information of each
“company” or “legal person”. Therefore, both FATF and EU urge other
countries or member states to take their recommendations to implement the
comprehensive and consistent measures to achieve the aforementioned goals.
Meanwhile, as they also acknowledge that countries or member states have
diverse legal, administrative and financial systems, therefore, they just set
up standards for countries or member states to adapt to their particular
circumstances.
The procedure to find out who the beneficial owner is of a “company”
or “legal person” is called “customer due diligence” (CDD). The CDD
process is not just a mechanical measure. It is a cascading process, which
means that multiple measures will be used to find out who really controls or
has control interest of a “company” or “legal person”. As a result, even the
“legal arrangement”, taking the trust for example, will be penetrated.
The Company Act had just been revised by the “Legislative Yuan” (the
Congress in Taiwan) and came into force on November 1, 2018 (the latest
Company Act). Prior to the passage of the latest Company Act, two
regulations had been enacted because APG would come to Taiwan and
conduct mutual evaluation in November this year. And these two regulations
adopted the very identical standards with FATF or EU in identifying who the
beneficial owner was. However, the latest Company Act does not follow the
same standard.
Article 22-1 of the latest Company Act, does not demand the
representative director to file the report with beneficial owner information to
the government agency. Instead, it just requests the information of
shareholders who own more 10 % shares of a company and the information
of manager of a company.
It is easy to find out that the latest Company Act creates a loophole and
may affect the efficiency of corporate governance. Accordingly, it is highly
advised to reconsider whether Taiwan should follow the identical standards
set up by FATF, EU or other countries so that the loophole could be made
up.
- 目次
- 壹、前言
貳、國際上實質受益人規範情形
一、制定實質受益人條款理由
二、國際上關於實質受益人的規範
（一）FATF 規範部分
（二）歐盟規範部分
（三）英國法規範部分
（四）其他國家規範部分
參、臺灣目前所遭遇的情形
肆、臺灣法令對於實質受益人的規定
一、金融機構防制洗錢辦法
二、金融機構執行共同申報及盡職審查作業辦法
三、公司法規定為德不卒
（一）政院版草案部分
（二）新修正公司法部分
（三）小結
伍、新修正公司法屏除實質受益人規範所造成公司監理的難題
一、讓金融體系、資本市場缺乏對弊案有效預警的利器
二、中資來臺投資的監理問題
三、我國公司監理標準不一的問題
四、對申報資訊有效監理與查核的問題
五、未規範具複數表決權股份之情形
陸、建議代結論
