論公平交易法上事業之功能性判斷的意義與功能

The Meaning and Functions of Undertaking Within the Fair Trade Act

公平交易法將事業區分為當然事業與功能性事業。功能性事業主要基於三項功能性判斷要素進行認定，但此一判斷在競爭法理論上之意義，並未受到明確釐清。
外國競爭法理論上有強調功能性判斷具有「實質違法性」與「責任歸屬」之分析機能，此種觀點更能完整說明功能性判斷在競爭法上之意義。又學說有強調功能性判斷應基於「相對性」原則進行分析，亦即相同事業在不同行為中應各別認定其事業該當性。在此一原則下，功能性判斷之評價重點應是「行為」而非「行為者」。
本文中，將回顧過去三十年來公平法之執法經驗，基於相對性原則確認功能性判斷在我國法上是否確實具有此等機能，並與二項公平法之規範特性進行合併觀察，重新省思功能性判斷之規範功能。

The Fair Trade Act (FTA), which is the competition law of Taiwan, applies to the conduct of an“undertaking.”Commonly accepted theories in Taiwan locate“undertaking”as the subject of the law. However, there exist foreign academic theories that emphasize the“substantive reach”and“attribution of liability”objectives of undertakings.
This paper is concerned with, first, whether an undertaking serves such policy objectives in the FTA as well. After revisiting past precedents, this paper concludes that undertakings have served both the“substantive reach”and“attribution of liability”objectives in Taiwan. Furthermore, according to the implied legal theory in existing precedents, this paper concretizes the“substantive reach”of undertakings to include both the“anticompetitive effect”and“justification”analyses.
Second, some competition law academics describe undertaking as a relative concept. In contrast, Paragraph 1 of Article 2 of the FTA categorizes undertakings into two types:“undertaking per se”and“function-based undertaking.”The functional approach is adopted in function-based undertakings. In contrast, an“undertaking per se”is an irreversible default (it is not permitted to overrule the legal fiction to be an undertaking per se, as long as the entity is a company, sole proprietorship, or partnership).
In such a dual legal structure, the“substantive reach”and“attribution of liability”analyses engaged in“function-based undertaking”judgment played no role in the“undertaking per se”analysis. However, it is still important to analyze“substantive reach”and“attribution of liability”issues in“undertaking per se”cases. Therefore, the only remaining way is to transfer the process to other parts of the FTA harm theory. Consequently, the legal theory of FTA is divided into different types, as a result of the unnecessary subject matter.
Finally, commonly accepted theories analyze the functional approach, including three factors: economic activities, independence, and continuity. These three factors are the sufficient and necessary conditions for a“function-based undertaking.”However, after examining the precedents, this paper finds that in some cases—especially the unfair competition cases—the Taiwanese competition authority (TFTC) usually depends on a very different definition of undertaking: whether the entity is engaged in illegal conduct. A possible reason for the“fourth approach”can be attributed to the dual targets of the FTA: the FTA is not only a competition law but also an unfair competition law. Therefore, the functional approaches originating from competition law are not automatically suited to unfair competitive conduct.
Based on the previous discussion, this paper confirms that the dual system of“undertaking per se”and“function-based undertaking”does not play a non-substitutable role in the FTA; instead, it produces contradictions and complexities. A better way to solve these issues is to restore“substantive reach”back to the“anticompetitive effect”and“justification”judgments.