The Taiwan High Court rendered the 106-Jin-Shang-Yi-4 Civil Decision of April 17, 2018 (hereinafter, the “Decision”), holding that although an actor has been found guilty in a final court order due to illegal operation of futures consulting and management business, it still cannot be concluded directly that the investors’ rights are undermined.
According to the facts underlying this Decision, the Plaintiff filed a complaint alleging as follows. Although the Defendant who operated Company A was not qualified to operate futures consulting and futures management business, the Defendant still sold to the Plaintiff the software at issue which the Defendant fraudulently asserted to have an automatic ordering function. Company A also asserted that it have cooperated with Securities and Futures Company B and could operate investment remotely on behalf of the Plaintiff, not to mention that the Defendant assured that the investment would always be profitable without losses. As a result, the Plaintiff purchased the software at issue for use. However, since the Plaintiff sustained losses after investing in futures, the Plaintiff claimed damages. The original decision was rendered against the Plaintiff. Dissatisfied, the Plaintiff filed this appeal.
It was pointed out in this Decision that the legal interest that the Futures Trading Law protects by prohibiting illegal operation of futures services enterprises is the administration and order of social and economic activities, i.e. supervision and management of the states on futures services enterprises, which are undermined due to violation of such requirements. What is undermined when such requirement is violated is the public law interest of the state in the requirement that operation of futures service enterprises should be licensed, and what is violated is commercial administration rather than individual private rights.
However, the Defendant’s behavior of selling the software at issue to the Plaintiff in the name of Company A was an illegal operation of futures consulting and management business. Although the court has rendered a final decision in which imprisonment was imposed, still the Defendant only operated futures consulting and management business illegally, and it could not be concluded that this undermined the Plaintiff’s right. In addition, it was held in this Decision that the fees paid by the Plaintiff were the considerations for the purchase of the software at issue. Since the software at issue was delivered to the Plaintiff pursuant to the agreement between both parties and the Plaintiff also used the software during the agreed-upon term, it is difficult to conclude that the Plaintiff was injured. Therefore, the Plaintiff’s damages claim on the ground of tort was founded to be groundless, and the appeal was rejected.