1. Background of the Study
Many controversies over the application of Article 46 of the Fair Trade Law occurred after it was amended on Feb. 3 1999. Article 46 is indeed complicated and difficult either in theory or practice. In spite of the FTC's analytic report released in Dec. 2000 on the application of this article after the amendment, disputes continued to arise. This study is intended to discuss the problems in the application of the article after the amendment by comparing it with related legislations in different countries, and by examining their legislative backgrounds, objectives and application elements, to ascertain this article's correlation with other regulations. Representative cases handled and decided in recent years will be reviewed and sorted out to establish suitable approaches for the application of this article. In the end, conclusions and suggestions will be presented. .
2. Methods and Process of the Study
The three following methods are adopted to make the discussion presented in this study more complete:
(1) Theoretic Analysis
Analysis based on related theories is conducted to determine how the regulatory function, legislative style and constituent elements of Article 46 of the Fair Trade Law should be interpreted in relation to other laws.
(2) Comparative Law Analysis
Related legislations in different countries are studied and compared to for the purpose of establishing the right interpretation of Article 46 since reference was made to the laws of various countries when the article was enacted. Therefore, it is deemed necessary to employ comparative analysis to reexamine the meaning of this article.
(3) Empirical Analysis
Mere theoretic review of Article 46 will be inadequate. As the article has been applied for years during which many controversies were encountered, it is therefore necessary to discuss these controversial cases.
This study begins with collection of information, including the legislative objectives, amendments made, and related documents and precedents both originated domestically and in foreign countries. Furthermore, legal doctrine is applied to examine related regulations and precedents to clarify the controversies this study is aimed to explore and by doing so, this study then concludes with possible suggestions.
3. Main Suggestions
According to the results obtained through the employment of the aforesaid analytic methods and viewpoints, the following suggestions regarding the FTC's rightful application of Article 46 of the Fair Trade Law are proposed as the following: 1) The FTC should extensively consult the competent authorities of the various branches of law to ascertain where the article may be applied as well as where it must not be applied. 2) The FTC should also offer administrative guidance and explain to concerned businesses how the article will be applied so that unnecessary damages can be avoided. 3) Lastly, the FTC should continue to coordinate with all concerned ministries and councils to review the existing competition restriction clauses. In other words, with the regulatory responsibilities it is delegated, the FTC should make efforts to advocate the rightful application of article 46 with concerned ministries and councils in order to fulfill the legislative objective of the Fair Trade law.