英文摘要 |
“Regulatory law” in the article refers to law of highly regulated industries, such as regulation of market entry or price regulation. These industries include energy, transportation, telecommunications, and financial industries. For some of regulatory law enacted, the purpose of which is to enhance competition among firms; for some others, the purpose is to provide remedial measures in case of lack of competition. When such competition-oriented regulation is overlapping with antitrust law, how shall antitrust authority react? Shall antitrust law be retreated or “repealed” because of the industry has been heavily subject to regulatory law of pro-competition nature? The article provides a study of seven U.S. Supreme Court cases regarding the principle of “implied immunity” and indicates that there are two components in the principle, i.e., the “pervasiveness” and “repugnancy”. The author also sets forth three elements in the principle: (1) extensive regulation by a statute and regulatory agency, (2) consideration of competition, and (3) contradiction to measures by the regulatory agency.
Next, two cases of Taiwanese Administrative Court with respect to article 46 of Taiwan’s Fair Trade Act have been studied. It shows that the principle of “implied immunity” in the U.S. is similar to the rationale of the two judgments in Taiwan. The U.S. component of the “pervasiveness” is equivalent to article 46 in Taiwan. There are two elements in article 46:
(1) “other laws provide relevant provisions”: Taiwanese court construed the element as exactly as the first element in the U.S. principle of “implied immunity”;
(2) “do not conflict with the legislative purposes of Fair Trade Act”: the best way to understand the core of the element is to invoke “consideration of competition” - the second element in the principle of “implied immunity”. |