台湾地区“陆资入台”法律制度评析

Taiwan's Legal Regime on Admission of Mainland Chinese Investment: A Critical Review

近20年来,台湾地区的"陆资入台"法律制度历经了从"禁止投资"到"有限制开放"的曲折发展过程。在较长的一段时间里尤其是陈水扁执政期间,"陆资入台"配套立法"缺位",这主要表现在"授权条款"的宽泛性、行政立法的审查力度不足、"朝小野大"及"朝野对立"的政治结构。2008年马英九执政后台湾岛内政治生态的重大转变,直接促使"缺位"现象的快速消解,"陆资入台"法律框架也由此构建。从陆资与侨外资在具体规定上的差距可以看出,台湾现行的陆资对台投资立法仍然存在诸多的歧视性规范。基于海峡两岸目前的现状,歧视性规范的消解将是一个渐进的过程,这或许是"两岸特色"在"陆资入台"问题上的一种体现。

During the past two decades, Taiwan＇ s legal regime on admission of mainland Chinese investment in Tai- wan （ MCIIT） has shifted from ＂complete prohibition＂ to ＂limited opening- up. ＂ For a long time, especially when Chen Shui - bian was in office, supplementary laws and regulations on admission of MCIIT were practically absent, as shown by the facts that ＂authorization clause＂ was too vague, that supervision over administrative legislation was ineffective, and that the political structure was plagued by ＂minority government vs strong congress＂ and ＂the governing party in huge conflict with the non - governing party＂. Since Ma Ying - jeou took office in 2008, Taiwan ＇ s political ecology has changed a lot, which resulted in effective solutions to those problems and the establishment of the legal framework on MCIIT. However, the differential treatment between overseas Chinese investment and MCIIT reveals certain discrimination toward the latter. This paper argues that the current cross - strait relations determine that eliminating such discriminatory treatment will prove a long and gradual process, which results from the complex interplay among various factors of ＂cross -＇strait characteristics＂ and many aspects of the issue of admission of MCIIT.