The Regulations and Measures to Deal with Cartel Behavior at the Era of Globalization
【Abstract】
- Research purpose
A look at the past history of competition law reveals
that the said law often changes with economic and environmental development.
Nowadays, in the environment that all countries are confronting challenges
of economic globalization, the competition law enforcement authorities have
encountered the new challenge of implementing competition laws to cope with
such changes and thus the revision of regulations to cope with the changes
and the manners of law enforcement have become new topics of discussion for
the enforcement agencies of competition laws. The competition law is enacted
mainly to regulate any cartel behaviors (the concerted action as referred
to in the Fair Trade Law). As cartel behavior has great impact on economic
development, this study focuses on how the law enforcement agency of the
domestic should revise its regulations for concerted action in the wave of
economic globalization.
In order to discuss this topic, this study was organized as the evaluation
and role of cartel behavior in history were first explored in order to understand
the evolution of regulations for cartel behavior. Beginning with the past development,
this study has further sorted and introduced the current regulations for cartel
in the leading countries as the background of exploring the regulations in
domestic. After that, the main purpose of this study is presented; that is,
the regulations and enforcement of the Fair Trade Law in Domestic. This section
is divided into two parts for discussions; one part looked back on the experiences
of law enforcement, the other part discussed about the trend of future development.
This paper is organized in such manner so that suggestions to improve the deficiency
can be made after an in-depth study of the law enforcement condition in Domestic.
- Research Method
This research mainly adopted literature reviews and descriptive
statistical analysis to explore the topic of this study. These two methods
are separately explained as follows:
- Literature review: This research method is mainly used in the chapters
and sections of cartel development, comparisons of competition laws for
each country and measures used by each country in dealing with cartels.
This study sorted and analyzed the presently available literatures for
further investigation of the topic of this research.
- Descriptive statistical analysis: This research method is mainly used
to analyze the past cases of the Domestic. Each case is examined subsequently
and the important factors for the cases are then quantified and presented
in charts. Such presentations helped readers to understand the cases of
concerted actions during the past ten years and more of the Fair Trade
Commission’s law enforcement.
- Major findings, conclusions and suggestions
This study found
the following conclusions and suggestions after using the aforementioned
methods to analyze and discuss this research topic:
- The descriptive
statistical analysis can be used to describe the characteristics of cases
handled by the Fair Trade Commission during the years of enforcing the
Fair Trade Law in the Domestic. With regard to the concerted action cases
that have been punished, such cases in general possess the following
characteristics: (1) The majority of the principal subjects in the punished
cases are trade associations or other organizations, accounted for about
60 percent of the punished cases; (2) In most cases, with regards to
the geographical region, only a single county or city has been affected
by concerted actions, the percentage is approximately 57 percent of the
punished cases; (3) Most concerted actions are carried out in the means
of price restrictions, accounted for approximately 60 percent of all
punished cases; the collusive bidding in single tender comes next, accounted
for approximately 14 percent of all punished cases; (4) approximately
47 percent of the consensus of concerted actions were not written down,
indicating that it is not easy to investigate and ascertain concerted
actions. In addition, with regards to the approval of concerted actions,
if the cases are compiled according to the exception clauses stipulated
in the Subparagraphs of the proviso of the Paragraph 1, Article 14, it
is found that most cases are approval of concerted actions to import
that stipulated by Paragraph 5, accounted for approximately 48 percent
of the total. Such finding can be attributed to the reason that many
daily necessities must be imported and concerted actions of importing
goods jointly are beneficial to the economy as a whole, but the concerted
actions of exporting goods in Subparagraph 4 and the concerted actions
during the time of depression in Subparagraph 7 were never seen.
- Confronting with the challenges in economic globalization era, the
trading of enterprises is no longer bound by the respective national
boundaries; instead the enterprises have targeted the global market
for their products. Moreover, along with the flourishing of knowledge-based
economy, research and development investments are regarded as the impetus
of economic growth. The competent authorities of competition laws are
confronting the new topic of how to cope with the aforementioned trend
in the development of globalization. After studying law enforcement
experience of the competent authorities of competition laws in many
countries, this study found that every country based on its past experience
in law enforcement, has clearly separated the cartel behaviors of enterprises
into hard core cartel that would harm competition and thus is restricted,
and good joint acts that do not interfere competition and even may
promote competition. In the future, the law enforcement of Domestic
should endeavor toward the direction of establishing ways to effectively
stop the former and to relax controls on the latter so as to promote
positive development in economy.
- After reviewing the course of law enforcement in Domestic and comparing
the law enforcement experiences of every country, the enforcement of
the Fair Trade Law in Domestic at least should include the following
thinking directions and development tendencies:
(i) With regards to the cases of trade associations’ concerted actions,
in order to effectively stop the concerted action, the entity that have
given their “consensus”, that is the trade associations, shall be punished
together with the entities that “carry out” the said consensus; that
is the individual enterprise. The Fair Trade Commission has adopted this
view in its most recent commissioners’ meeting;
(ii) With regard to concealment problem of concerted actions, the experiences
of law enforcements in every country are referred to and the regulation
of leniency policy is added into the Fair Trade Law when it is revised.
However, it should be pointed out that the Fair Trade Commission should
place emphasis on the clear-cut and fairness of law enforcement standards
at the time prescribing the relevant regulations so that the said system
can be implemented smoothly.
(iii) In regard to the relaxation of regulations for the exception of
concerted actions, the draft of the Fair Trade Law’s revision has added
exemption clauses for the general items that can be approved with exception
and no punishment for minor cases. The future development should more
explicitly define each manner and form of concerted action so that there
is a clear-cut standard to distinguish between good cooperation and illegal
concerted actions.
(iv) In the environment of globalizing economy, the international cartel
nevertheless does not vanish as a result of competition in global market.
The law enforcement agencies from all countries have shown their concerns
on this issue. At present, the competent authority of Domestic has maintained
friendly relations with several competent authorities of competition
law and actively participated in activities of international organizations.
In the future, the competent authority should continue to closely exchange
and interact with the competent authorities of competition law from other
countries in order to enhance the experience exchanges in competition
law enforcement and the investigations of international cartel cases.
Researcher: Shin, Chih-Chung, Hung, Shui-Hsing, Chung, Chun-Ting, Liang, Ya-Chin,
Cheng, Shih-Yu