共同研發與聯合行為之研究-以我國政府推動研發聯盟為中心

Abstract

隨著科技的創新與資訊的發達，過去以單打獨鬥之方式由企業自行開發技術並自行製造銷售產品之經營模式，已不足以應付全球化之競爭環境，尤其科技研發所需之資金相當龐大，企業所面對之競爭又特別激烈且快速，更有賴企業間之彼此合作，在競爭關係中重新塑造合作關係。我國產業多屬中小企業，以其單打獨鬥之經營模式實不足以應付此等國際情勢。有鑑於整合群體力量共同開發新技術或新產品，已為企業科技研發之趨勢，我國政府自2001年起開始積極推動研發聯盟計畫，以補助經費方式協助業界成立研發聯盟。 惟研發聯盟卻可能涉及聯合行為之議題。在大多數之研發聯盟關係中，係以增進效率、提昇競爭力及產業創新等經濟利益為其合作目的而從事「共同研發」，而成員之間仍存在競爭之可能，因此，研發聯盟並不適當即當然認定其屬聯合行為而加以禁止，相同地，研發聯盟亦不當然完全具有促進經濟利益之效果，若貿然將研發聯盟全面排除公平交易法之適用亦不適當。就研發聯盟是否構成聯合行為之認定，於研發聯盟成立之初，尚不難據以判斷是否符合其行為主體要件、形式要件及實質要件，至於如何判斷事業之合作行為是否足以影響市場功能之效果要件，則未有一明確之判斷基準，此一效果要件並不以實際已影響市場功能者為限，只要該合作行為具有危害市場功能之可能性者，公平交易法即有加以干涉之必要。然而研發聯盟之參與事業在其是否得以確信其合作行為未構成聯合行為仍存有疑慮之情形下，參與事業如欲確信本身之合作行為合法，唯有申請例外許可一途，但行政機關之審查往往費時，而有礙研發之時效性。更有甚者，目前我國公平交易法之聯合行為規範，可能使競爭者間之合作行為陷於「進得來卻出不去」之窘境，亦即競爭者間之合作行為形式上可能會符合第七條之構成要件，但實質上未必能符合第十四條所列舉之要件，儘管該合作行為有益於整體經濟及公共利益，亦根本無從向公平會申請例外許可。由於此種行政不效率及法規範不健全之現象，導致參與事業之成本增加，以致於目前業者普遍自認為有正當理由從事合作行為，而不向公平會申請許可即進行共同研發。如此，將使法規範形同具文，且長期而言，對於我國之科技發展亦將可能造成不利之影響。 本論文從實務面探討我國政府推動研發聯盟政策所涉及之聯合行為議題，並擬從推動研發聯盟之先趨各國（如美國、歐盟及日本等國）對於研發聯盟之實務運作及規範，尋求我國政府推動研發聯盟在競爭法管制上之借鏡，而予以研發聯盟適當之管制，以使研發聯盟之推動不僅能創造競爭優勢並同時能兼顧競爭秩序之維護。

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.