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|Other Titles: ||A case study of the cartels punished by the fair trade commission.|
|Authors: ||陳建龍;Chen, Chien-lung|
趙揚清;Chao, Yang-ching;黃振豊;Huang, Cheng-li
|Keywords: ||聯合行為;比較個案研究;公平交易法;裁處罰鍰額度參考表;Cartels;case study comparative;Fair trade law;Reference table for the amount of sanction and fine imposed|
|Issue Date: ||2010-01-11 04:27:59 (UTC+8)|
The Cartels for enterprise is a typical way of restricting the competition. And this is commonly seen in industrially advanced countries, that the Cartels directly restrict the fair competition in the market and indirectly affecting and rights and privileges of consumers. Since the deployment and implementation of fair trade law, the performance of it evidenced its effectiveness, nevertheless the unlawful Cartels behaviors still exist, even with frequent occurrences. Whether the occurrence is propelled by huge unlawful profits or the sanctions and fines for these behaviors are not effective, hence, this research adopts the “comparative case study” approach, which indicated that between the year of 1999 to 2007 the Cartels sanction cases which had the representative indicators were selected for this study. These include three types of large scale industry：The Trade association, providers for gaseous fuel suppliers and preprocessed concrete industry. And the five cases selected for study purpose are those imposed with large fines.
First of all, this study is to explore the main cause and purpose for the formation of individual case in the Cartels, and point out the laws that govern this specific behavior in addition to the considerations for the decision behind the sanctioning these behaviors, which are based on the “Reference table for the amount of sanction and fine imposed” by Fair Trade Commission. These rules are used to evaluate similar sanction cases or relevant ones, and they may even take a different approach in consideration in regards to those rulings from administrative court. And comparative analysis is taken to evaluate the performance of Fair Trade Commission. Additionally, from the accounting standpoint, this research is to quantify several items which are considered or referenced for sanctions and fines imposed by Fair Trade Commission, in addition to reference those sanction rulings and standards adopted by advanced countries. And the ensued recommendations are to be submitted for future reference.
Through the research process, the following findings can be summarized: (A) First of all, the causes of Cartels behavior, these include: (1) Similarity in the product or product line; (2) Majority of the products are daily necessities of the general populace; (3) Fewer manufacturers or business association were involved; (4)Except those in the oil business are the enterprises of monopoly in nature, the rest achieve their market centralization through the Cartels business maneuvering. In the midst of all, the (2) items are basically “General populace necessities” in nature, therefore the consumers are placed in an inferior status when bargaining and unable to unite to fight back the Cartels pricing practices, and only can be the receivers for the adjusted prices. These are the main findings in this research. (B) The Cartels behavior’s main purpose lies at： (1) To assure the existing profitability and prevent the newcomers from entering the market; (2) Maintain status quo of market shares for the existing Cartels partners; (3) Through raising the price in order to acquire undue profits. (3) And this research finds that the majority of the Cartels behaviors are similar to those of “Price unification”, and the occurrence of Cartels behavior is primarily to acquire undue profits and through the price gauging and private agreements between business partners, this goal can be achieved as result.
Additionally, in the selected case study of two Cartels violations, i.e. the barreled gas packaging factories, the comparative study finds that “Reference table for the amount of sanction and fine imposed” can be adopted as the quantified baselines for evaluating the violation of appropriate laws. And this is also objective from perspective of this thesis. Since the Fair Trade Commission abolished this reference table on Dec. 15, 2006, and this act itself is found to increase the uncertainty for dispute resolution from the perspective of arbitration of future law violation cases. And this indeed is worth of further study and investigation. And the Executive Yuan’s appraisals for Fair Trade Commission are positive and encouraging, only withhold different point of view in regards to the amount of sanctions imposed. From these, this Reference table for the amount of sanction and fine imposed possesses the attributes of appraisal. The need to further enhance this table in the area of supporting the objectivity of imposing the sanctions and ensure to exemplify its effectiveness is justified after all.
And the upper limit of the fine resulted from violating the sanctions, the first time offender is set at 2.5 Million NTD, repeat offender’s upper limit is set at 5 Million NTD. Nevertheless, this seems to be not working in light of predicted performance in clamping down the offenses. And repeated violations, especially those of aggravated Cartels behaviors, should be imposed with heavy sanctions and fines. In addition, more effective arbitrations should be administered to lessen the repetitive occurrences of Cartels behaviors. For instances, in US and Germany, they implemented sanctions and fines with the upper limits as high as three times the damages or profits acquired from illegal Cartels practices, since these sanctions and fines are directly impacting the unlawful profits garnered, and are predicted with better performance in suppressing the unlawful practices. Alternatively, from the accounting perspective in analyzing the items and the ramification behind the tables referenced by Fair Trade Commission, in these, the acquired profits through unlawful practices, the period that the trading order is maintained and persisted, in addition to the market share for the enterprise in interest; these three items can be quantified, and less disputes would be incurring. And these should be taken in as the main evaluating factors for appraising the unlawful profits. And other items can be used as the references for either increasing or decreasing, even imposing treble damages. Such as： To facilitate the administrative arbitration, it can copy and reference the European Alliance’s rules. In addition to reference the ramifications within the table itself, it can also reference the upper limit of the percentages which are the sales volumes for those who participating unlawful Cartels practices. This way should prevent the excessive and unneeded sanctioning and would result with negative impacts to the overall enterprise development.
As for the difference of opinion between Fair Trade Commission and Executive Yuan in regards to sanctions and fines, and this is resolved by Fair Trade Commission’s actively and aggressively negotiating with the judicial organizations. In the process, the contents and ramifications, even the evaluating standards which the sanctions and fines are based upon, are clearly stated as result. For those exceptions that are unique, they adopted the arbitration suggestions from judicial organizations and increase the amount of fines accordingly. And this also invites the courtesies from judicial organizations in honoring the administration’s law prescription rights and ensued execution of the law, centering on the sanctions from the executive discretions.
Lastly, the analyzed sanction cases in this study are mostly cases of general populace necessities, affected by subjective factors both domestic and foreign. As for how to effectively stop these unlawful practices, it not only requires increasing the fines from each violation, since the government holds different point of view from the perspective of industry policy, targeting the industry’s characteristics, and demand & supply connections. Therefore, the corresponding policies for adjusting the supply and demand factors should be proposed accordingly in this regard.
|Appears in Collections:||[會計學系暨研究所] 學位論文|
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