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來源資料
頁籤選單縮合
題 名 | 聯合行為主體之判斷=Determination of the Actors of Concerted Action |
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作 者 | 周淑萍; | 書刊名 | 公平交易季刊 |
卷 期 | 6:2 1998.04[民87.04] |
頁 次 | 頁67-88 |
分類號 | 585.8 |
關鍵詞 | 聯合行為; 判斷; 公平易交法; |
語 文 | 中文(Chinese) |
中文摘要 | 聯合行為主體之判斷,影響處罰之對象與法律之適用,實務上公平交易委員會,對於事業從事聯合行為,以違反公平交易法第十四條規定予以處罰,固無問題,惟對於同業公會所發起的聯合行為,往往僅處罰同業公會,至於參與聯合之事業,則未見同時論處。於處罰同業公會時,有時論以違反第十四條規定,有時論以違反第十九條第四款規定,其論處標準,似以同業公會有無使用不正當方法為斷。究其原因,公平交易法第七條關於聯合行為的定義,基本上係以事業從事交易之行為特性為概念出發,因此適用於同業公會時,便產生問題,縱使將「其他方式之合意」,目的性擴張解釋包括同業公會的決議,惟「有競爭關係」一語,的無法說明於本質上不從事交易行為的同業公會。又縱使將「有競爭關係」刪除,同業公會間亦難謂有直接上、下游之垂直關係。因此本文認為,對於同業公會限制競爭行為,應該另外立法加以規範,且用語上為避免與第七條事業聯合行為混淆,可直接以「同業公會不得為實質之限制競爭」稱之。在以同業公會形式從事限制競爭行為,若於公會行為中,尚可發現成員事業之行為時,除處罰同業公會外,實際參與聯合行為之事業,亦應加以論處。惟在事業因受公會強制,喪失意思決定自由時,僅處罰同業公會,受強制之事業應無可非難。至於公會以利誘方式唆使事業參與聯合行為,尚非可謂喪失意思決定自由。目前同業公會在適用公平交易法第十四條與第十九條第四款規定時,本文以為,前者同業公會行為已在市場上造成限制競爭之實質,後者同業公會行為尚未對市場競爭秩序造成實質服制,僅止於有妨礙競爭之虞的危險階段。 |
英文摘要 | The determination of the actor of concerted action affects the subject to be held liable for punitive measure and applicabi1ity of law. In actural practice, the Fair Trade Comission punishes the enterprises for engaging in concerted action, citing the stipulation as covered under Fair Trade Law, Article14, may prove to be legitimate; however, for the concerted action as initiated by trade association, the said association above is generally deemed as the subject for punitive measure, which has never been imposed on the enterprises taking part in the concerted action. In the punishment on trade associations, sometimes, violation against the stipulation as covered under Fair Trade Law, Article14 is cited, and sometimes, Article19, Paragraph 3 of the law is cited. It would then seem that the basis for the legal decision is based on whether the trade association had taken improper means. In examining the causes, Article7 under the Fair Trade Law, where definition of concerted action is concerned, is based on the concept of the character of business transaction. Consequently, problems arise when it is applied to trade association, even if the object of “other from of mutual understanding” is extensively interpreted to inc1ude the resolution of trade association, as the term “having competitive relation” still cannot be used to explain trade association which in nature is not engaged in transaction behaviour. Furthermore, even the term “having competitive relation” is to be taken out, there is no such vertical relation of upper, lower stream among the trade associations. Thus, this study intends that additional legislature should be enacted for the restricted competition behaviour by trade association, and that in wording, confusion with the stipulation concerning concerted action as covered under Article7 should be deterred, and might be delineated as “trade association may not engage in restricted competition in actual practice”. Where restricted competition behaviour is conducted in the form of trade association, and that the member thereof is discovered to be engaged in concerted action within the association's actions, inaddition to hold the association punishable, the enterprise participated in the concerted action shall also be held liable; provided that where the enterprise looses its liberty in rendering own decision on account of being subject to the forces of such association, the restrained enterprise should not be held accountable. In terms of association’s offering incentives, of a enterprise participation in concerted action, such circumstances shall not be deemed as loosing the liberty of making own decision. Where the stipulations, as covered under the Fair Trade Law Article14 and Article19, Paragraph 4, applicable to trade associations, this study intends that the former has already constituted restricted competition in the market, and the later has not yet posed actual restriction on the market competition order, and is limited to the dangerous phase of possible competition impediment. |
本系統中英文摘要資訊取自各篇刊載內容。