美國Dodd-Frank Act有關證券化利益衝突規範之評析－給台灣的借鏡

Securitization is a measure of structured finance that must joint commercial bank, asset management institutions (such as mutual funds, hedge funds, private equity funds, etc.), special purpose vehicle (SPV), insurance companies, and other related agencies to participate. It confuses the traditional separation of banking and securities activities that it is hard to be supervised by related financial authorities. U.S. subprime mortgage crisis was resulted from the presence of conflict of interest involving the information asymmetry between securitization participants and investors. Moreover, entered each participant's inherent field too deeply, systematic risk is easy to bring out when a participant faced insolvency or bankruptcy. In the end, Federal Government pushed bailout plan to solve systematic risk problem by using taxpayers' fund. And then, the market faced an adverse selection problem. U.S. Congress passed the ＂Dodd-Frank Wall Street Reform and Consumer Protection Act＂ in 2010. It was a legislative response to the global financial tsunami and it was the largest financial regulation overhaul since the 1930s. Among them, Section619 ＂Volcker rule＂ and Section 621 ＂Conflicts of Interest Rule＂ are very important regulations providing useful tools to address too big to fail problem and conflicts of interests problem in securitization. Section619 is the rule to prevent banks from engaging in the high-risk activities of proprietary trading and limit conflicts of interest in such proprietary trading or other trading-related activities. Section 621 is the rule to prohibit participant who structures or sells an asset-backed security or a product composed of asset-backed securities from going short, in the specified timeframe, on what they have sold. In this article, I introduce such two rules and comment its pros and cons, then describe and analyze Taiwan's current financial regulations relating to prevent conflicts of interest. I hope my opinion in this article could contribute to the future legislation or could as a explain theory for application of financial regulations in judicial review.