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    Title: 公平交易委員會處分事業聯合行為案例之研究
    Other Titles: A case study of the cartels punished by the fair trade commission.
    Authors: 陳建龍;Chen, Chien-lung
    Contributors: 淡江大學會計學系碩士在職專班
    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
    Date: 2008
    Issue Date: 2010-01-11 04:27:59 (UTC+8)
    Abstract: 事業之聯合行為,乃是一種典型之限制競爭方式,先進工業國家常見事業以聯合行為直接阻礙市場之公平競爭,間接損及消費者權益。公平交易法施行以來,在執法上雖有相當成效,但聯合行為違法案件依然存在,甚至類似案件一再發生,此是否因其不當利益甚大,而罰則不足以嚇阻所致,故本研究採「比較個案研究法」,自88至96年間聯合行為處分案中,選取具代表性之同業公會、氣體燃料供應業、及預拌混擬土業三大類型產業,且以受罰金額較大者五件個案為研究分析對象。首先,探究個案事業聯合行為形成之主因及目的,並指出其違法類型,以及公平交易委員會依「公平會裁處罰鍰額度參考表」作成處分之所考量因素,進而對處分類似或相關案件,甚至與行政法院訴訟作成之不同考量,併作比較分析,藉以檢視公平會執法效果。此外,從會計觀點試擬將公平會裁處罰鍰所考量之若干項目予以量化,以及參酌先進國家體例對罰鍰裁處之依據與標準,提出建議供參。
    經本研究結果可歸納出下列主要發現:(一)首先,事業聯合行為發生之主因,包括:(1)產品同質性高;(2)產品多為民生必需品;(3)廠商家數少或同業公會介入;以及(4)除油品供應商係寡占市場業者外,餘多經由聯合行為提高其市場集中度。其中,第(2)項產品多為「民生必需品」,致使消費者處於劣勢無法抵制聯合行為之價格調整,僅能作為價格調整後之接受者,乃本研究之主要發現。(二)聯合行為之其主要目的,則在:(1)確保現有廠商之既有利益,阻隔新競爭者加入;(2)維持現有參與聯合廠商之市占率;(3)藉價格調漲,掠取不當利益。(三)而本研究聯合行為違法類型以「價格之聯合」居多,事業聯合行為的發生,主要是在獲取不當之利益,藉由價格之調整及與同業間的協議而達成此一目的。
    再就所選取之桶裝瓦斯分裝廠二個聯合行為違法案例中,經比較研究發現「裁處罰鍰額度參考表」可作為評斷違法行為量化之準據,且較具客觀性。而公平會於95年12月15日廢止該參考表,恐對其後違法案件之裁處,徒增更多爭議與不確定性,實值商榷。又從行政法院對公平會裁處之評斷,在違法行為認定上予以肯定,僅對罰鍰裁處之多寡有不同看法,由此可知,該參考表具評核價值,而應對參考表作進一步強化其供作裁處罰鍰之客觀性,並發揮其實質功效。
    又因公平法對首次違法處罰之金額為上限2,500萬元,再次違法之處罰上限為5,000萬元之規定,但似無法達成預期之遏阻效果,而一再違法,尤其對惡質卡特爾,應加重罰則,並作出更有效的裁量對策,以減少違法聯合行為的再次發生,如美國與德國以違法聯合行為所造成損害或獲得利益之3倍為上限,因與違法利益有直接關聯性,而預期可產生較大之遏阻效果。另從會計觀點剖析公平會所訂參考表所列之考量項目,其中違法行為所得利益、交易秩序持續期間與事業之市場地位三項為予以可量化,較不具爭議性,列為核計不當利益之主要衡量因素,而其他項目則作為增減或加倍處罰之參考指標;如為便利行政裁量,可仿效歐盟規定,除參考表內各考量因素外,另以參與聯合行為違法業者之營業額百分比作為上限,以避免過度處罰而影響業者之經營發展。
    至於公平會與行政法院對罰鍰裁處之不同見解,此有賴公平會主動、積極與司法機關協商,充分表明裁罰依據之考量內涵與衡量標準,除因特殊情況差異甚大,可參採司法機關裁決之建議而增減罰鍰外,宜請司法機關尊重行政機關制訂與執行處罰之行政裁量權。
    最後,本研究中所剖析之處分案例,多為民生必需品,受國內外主客觀因素影響,如何遏阻一再發生違法情事,除裁處罰鍰予以加重外,政府尚須在產業政策面,針對該產業特性與供需關聯作出不同考量,並提出調節物質供需之等因應對策。
    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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