| 摘要: | 有鑑於新型醫療保險給付組織及「管理式醫療照護」(Managed care)觀念逐漸為先進國家採為提供國民健康保險制度之參考依據，本文探討醫療市場在逐步走向自由化的同時，市場各參與者於互動過程中，可能出現那些與市場競爭秩序相悖之行為；而針對這些行為，在反托拉斯法學理及實務上，有何規範之道。依傳統反托拉斯法對不當競爭行為之「水平」與「垂直」二分法，本文以美國法關於醫療市場限制競爭交易安排之代表性判決與判例為介紹與分析之對象，檢討反托拉斯法學理對醫療市場內之差別待遇、搭售、獨家交易、價格與非價格聯合等行為之可能評價為何。並藉此歸納可供我國主管機關於未來制定相關醫療健保給付制度以及執行公平法時所可參考之幾項建議。
With the emergence of various pre-paid types of health careorganizations in the developed countries, and the acceptance by thosecountries of the concept of "managed care" as the intellectualguideline for designing health care policies, the need to applyantitrust law to the health care market appears to be more evidentthan ever. In this paper, I intend to set out a preliminary analyticalframework for the likely application of the Fair Trade Law to thehealth care market in Taiwan. Following the conventional "horizontal"and "vertical" dichotomy for antitrust analysis of potentialanticompetitive behavior, I introduce and examine the leading casestried by the U.S. Supreme Court and other lower courts, and the PolicyStatement regarding the application of antitrust law to health caremarket made jointly by its FTC and Department of Justice in 1996. Inparticular, I focus on how price discrimination, tying, exclusivedealing arrangements, and price or non-price cartels in the healthcare market have been dealt with by the courts and the relevantagencies in the United States. I close this paper with a discussion onthe implications that could be drawn from American experience and thatcould benefit the interpretation and enforcement of the Fair Trade Lawin the future.
With the emergence of various pre-paid types of health careorganizations in the developed countries, and the acceptance by thosecountries of the concept of "managed care" as the intellectualguideline for designing health care policies, the need to applyantitrust law to the health care market appears to be more evidentthan ever. In this paper, I intend to set out a preliminary analyticalframework for the likely application of the Fair Trade Law to thehealth care market in Taiwan. Following the conventional "horizontal"and "vertical" dichotomy for antitrust analysis of potentialanticompetitive behavior, I introduce and examine the leading casestried by the U.S. Supreme Court and other lower courts, and the PolicyStatement regarding the application of antitrust law to health caremarket made jointly by its FTC and Department of Justice in 1996. Inparticular, I focus on how price discrimination, tying, exclusivedealing arrangements, and price or non-price cartels in the healthcare market have been dealt with by the courts and the relevantagencies in the United States. I close this paper with a discussion onthe implications that could be drawn from American experience and thatcould benefit the interpretation and enforcement of the Fair Trade Lawin the future. |
