标题: 共同研发与联合行为之研究-以我国政府推动研发联盟为中心
The Research on Research and Development (R&D) Collaboration and Concerted Action- Focusing on the Research and Development (R&D) Collaboration Programs of Government in Taiwan, R.O.C.
作者: 萧丽芬
Li-Fen Hsiao
吴秀明
刘尚志
Hsiu-Ming Wu
Shang-Jyh Liu
管理学院科技法律学程
关键字: 联合行为;研发联盟;联盟;公平交易法;共同研发;Concerted Action;R&D Collaboration;Alliance;Fair Trade Act;Joint R&D
公开日期: 2004
摘要: 随着科技的创新与资讯的发达,过去以单打独斗之方式由企业自行开发技术并自行制造销售产品之经营模式,已不足以应付全球化之竞争环境,尤其科技研发所需之资金相当庞大,企业所面对之竞争又特别激烈且快速,更有赖企业间之彼此合作,在竞争关系中重新塑造合作关系。我国产业多属中小企业,以其单打独斗之经营模式实不足以应付此等国际情势。有鉴于整合群体力量共同开发新技术或新产品,已为企业科技研发之趋势,我国政府自2001年起开始积极推动研发联盟计画,以补助经费方式协助业界成立研发联盟。
惟研发联盟却可能涉及联合行为之议题。在大多数之研发联盟关系中,系以增进效率、提升竞争力及产业创新等经济利益为其合作目的而从事“共同研发”,而成员之间仍存在竞争之可能,因此,研发联盟并不适当即当然认定其属联合行为而加以禁止,相同地,研发联盟亦不当然完全具有促进经济利益之效果,若贸然将研发联盟全面排除公平交易法之适用亦不适当。就研发联盟是否构成联合行为之认定,于研发联盟成立之初,尚不难据以判断是否符合其行为主体要件、形式要件及实质要件,至于如何判断事业之合作行为是否足以影响市场功能之效果要件,则未有一明确之判断基准,此一效果要件并不以实际已影响市场功能者为限,只要该合作行为具有危害市场功能之可能性者,公平交易法即有加以干涉之必要。然而研发联盟之参与事业在其是否得以确信其合作行为未构成联合行为仍存有疑虑之情形下,参与事业如欲确信本身之合作行为合法,唯有申请例外许可一途,但行政机关之审查往往费时,而有碍研发之时效性。更有甚者,目前我国公平交易法之联合行为规范,可能使竞争者间之合作行为陷于“进得来却出不去”之窘境,亦即竞争者间之合作行为形式上可能会符合第七条之构成要件,但实质上未必能符合第十四条所列举之要件,尽管该合作行为有益于整体经济及公共利益,亦根本无从向公平会申请例外许可。由于此种行政不效率及法规范不健全之现象,导致参与事业之成本增加,以致于目前业者普遍自认为有正当理由从事合作行为,而不向公平会申请许可即进行共同研发。如此,将使法规范形同具文,且长期而言,对于我国之科技发展亦将可能造成不利之影响。
本论文从实务面探讨我国政府推动研发联盟政策所涉及之联合行为议题,并拟从推动研发联盟之先趋各国(如美国、欧盟及日本等国)对于研发联盟之实务运作及规范,寻求我国政府推动研发联盟在竞争法管制上之借镜,而予以研发联盟适当之管制,以使研发联盟之推动不仅能创造竞争优势并同时能兼顾竞争秩序之维护。
With the innovation of technology and explosion of information, the enterprises are not able to overcome in the global competition environment with the old style business model which compete solely in the market by developing own technologies, manufacturing and selling own products. Especially it takes huge fund for technical research. Enterprises have to face the keen, fast-changing competition environment which makes them to think about cooperation with each other and establish the new partnership in their existing competing relationship. Most of the enterprises are middle-small size in Taiwan. The business model of fighting alone is really insufficient to compete in the international circumstance. Because it has been a trend, which integrate group resources to co-develop new technology and products, toward enterprise technical R&D, our government starts to impel the R&D alliance plan positively from 2001. It assists enterprises to establish the R&D alliance in funding them.
However, the R&D alliance may possibly get involved in the subject of Concerted Action. In the relationships between the most alliances, the purpose of “co-research and co-development” are based on improving efficiency, competition ability, product innovation, other economic benefits and etc.. It still has the possibility of competitions between alliance members. Therefore, it is not appropriate to regard the R&D alliances as Concerted Action and forbid them. As well, the R&D alliances do not have the certain result of improving economic benefits. It is also not appropriate to exclude the R&D alliances in the Fair Trade Act rashly.
As for the identification of Concerted Action on R&D alliances, it is not difficult to judge whether it conforms to its major action element, form element and substance element in the beginning of establishing the R&D alliance. As for how to judge whether the activity of enterprise cooperation is sufficient to impact the result element of market function, there is no certain judgment standard. The result element is not limited in those which have already impacted the market function. As long as the cooperation action has the possibility of harm to market function, the Fair Trade Act is necessary to interfere. However, since we have doubt on whether we ensure the cooperation activity on the enterprises of the R&D alliances has not resulted in Concerted Action, there is only one way to apply the exception approval if the enterprises want to ensure the legitimating of cooperation action. But the examination of the administrative organizations is usually very time-consuming which obstructs the efficiency of research and development.
And what is more, the Concerted Action in our country’s present Fair Trade Act may put the cooperation action between the competitors in an predicament of “get in but cannot get out”. Namely it means the cooperation actions between the competitors formally may conform to article 7 but actually may not conform to the examples in article 14. Although the cooperation actions have advantages to the social economy and public benefit, there is no way to apply the exception approval from Fair Trade Commission. Because of the awful efficiency of administration and incomplete law, it increases the cost of participating enterprises which makes the enterprises think they have the right reasons to participate the cooperation actions for cooperation R&D without approval from Fair Trade Commission. Therefore, the law will be a mere formality and it eventually may have disadvantageous influence to our technical development in the future.
This thesis pragmatically discusses the subject of Concerted Actions occurred by the cooperation R&D alliance policy impelled by our government and draws on the experiences of advanced countries in impelling the cooperation R&D alliances such as USA, European Union, Japan and others. Their regulations and laws for the operations of cooperation R&D alliance could be the reference to our government to have appropriate control to our cooperation R&D alliance to make it not only competitive in the market but also maintaining the competition order.
URI: http://140.113.39.130/cdrfb3/record/nctu/#GT009068513
http://hdl.handle.net/11536/41802
显示于类别:Thesis


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