我國公平交易委員會行政和解制度之探討

Abstract

按我國公平交易法係經濟與法律結合之法領域，而我國公平交易委員會即係其執行之行政機關，以執行推動國家經濟政策之必要措施與手段。然於我國公平交易委員會執法之過程中，因須以有限之人力、物力，處理各種糾葛複雜之反競爭行為，又須評估對於整體經濟之正面與負面之影響，倘公平交易委員會依法執行，則非必有益於全民福祉;而在法律執行時，舉證事實與適用法律構成要件，往往因不確定法律概念，使得在處理限制競爭行為與不正競爭行為上往往容易造成標準不明及判斷不易之現象；另部分違法事證，因當事人不合作或事過境遷，而使證據滅失，在蒐集證據上亦有相當之困難度。因此在執行競爭法之主要國家（如美國）多有嘗試在競爭法中藉由不同於一般行政程序或訴訟程序之「非正式程序」的設計，賦予行政機關較大、較具彈性之執行權力，行政和解程序即係產生。有鑒於此，我國於民國八十八年二月三日總統令制定公佈行政程序法，而該法於第一百三十六條明定行政機關得以締結行政契約以代替行政處分，而我國公平交易委員會為配合行政程序法將於民國九十年一月一日施行，即於民國八十九年九月二十一日第463次委員會決議通過「行政院公平交易委員會締結行政和解契約處理原則」，明定公平會與事業締結和解契約以代替行政處分者，除法律另有規定外，依該處理原則辦理。 茲查行政和解契約之主要功能係具有促使行政程序經濟化之作用，按行政機關於作成行政處分前本應依職權調查行政處分所依據之事實或法律關係，確定事實或法律關係後，始得據以作成行政處分。若經依職權調查而不能確定者，不論係遲延不決或貿然決定，均有損人民權益與行政目的。因此為有效達成行政目的，並解決爭執，行政機關與當事人各相互讓步，在不牴觸法規規定之前提下，容許行政機關與人民締結行政和解契約，不僅可以節省許多行政成本，也較易使相對人信服。且因我國公平交易委員會所存在之目的係為增進整體經濟利益及公共利益，而因此特殊性，我國公平交易委員會更應容許行政和解契約之締結。惟目前所作成之行政和解案例僅係有四件，依其締結時間排序分別為INTEL案、法商馬特拉案、RCA（湯姆笙）案及微軟案。然參諸國外之法制（如美國），均多所採用行政和解方式以處理競爭事件，此是否因我國所採取之法制不同而致，是否有需要改進之處，本文即希以此論文討論該問題之癥結所在。 本論文擬針對「我國公平交易委員會行政和解制度」之內涵、實務運作流程、案例、其法律性質、合法性、合目的性及相關爭議問題，作一研究分析，並以美國之法制為比較，再輔以專家訪問之研究方法，以期能發揮拋磚引玉之效，引起相關部門之重視，進而做為我國執行公平交易法之參考，並使我國法制得以適應世界潮流。

It is the field of law in which the economy combines with the law according to the Fair Trade Law in Taiwan, and the Fair Trade Commission (FTC) is the administrative authority which in charge of carrying out and promoting requisite measures and means of the national economic policy. However, during the course of FTC to enforce the law to deal with various kinds of entanglement complicated against the competition behavior, because of the limited resources on manpower and material to input those complex cases, combining with the broaden view which must take the pros and cons of measures on the whole economy into consideration, if the FTC is totally based on the legal form, then the result will not necessary satisfy the welfare of the whole people; Moreover when carrying out the law, the action to prove the fact and find the right law factors are often be blocked by uncertain legal concept, which will make it easily to cause the standard unclear and make decisions difficultly when dealing with the competition and unfair trade practice. What’s more is on some illegal fact and evidence, because of the uncooperative on involved persons or the diminishing of facts as the time passed by, which also increases the degree of difficulty in collecting the evidences. Therefore the main countries which carry out the competition law (ex. U.S.A.) have tried to embed the 'unofficial procedure' in the competition law with the general administrative procedure or the contentious procedure to entrust the administrative authority with bigger, and more flexible executive power to discuss the conduct, the procedure of Administrative Settlement is thereafter produced. In view of this, our country announces the Administrative Procedure Act which was promulgated by the Presidential Decree on February 3, 1999, and in the act of article 136, it is clearly stated that “Where an administrative authority is unable to determine the facts or the legal relations as the basis for an administrative disposition notwithstanding an inquisition process having been conducted ex officio, it may enter into a compromise or an administrative contract with a citizen in lieu of administrative disposition in order to settle the dispute and to effectively achieve the purpose of administration”. In order to cooperate with the Administrative Procedure Act to implement on January 1 in 2001, the FTC passed 'the fair trade committee of executive authority concluded the agreement of Administration Settlement and dealt with the principle' in the 463rd committee on September 21 in 2000, which states the FTC will conclude the agreement of Administration Settlement in order to replace administrative disciplinary action, except that law make it an exception.

The main function of Administration Settlement is to impel the economy function of the administrative procedure. According to the procedure of administrative authority to make administrative disciplinary action, it should investigate base on fact or legal relation in accordance with functions and powers administrative disciplinary action, after confirming the fact or the legal relation, the authority should base on the fact to take the administrative disciplinary action. If the fact or legal relation is unsure after the investigation, either pending or rashly making determination, both actions will diminish people's rights and interests and make harm to the administrative purpose. In order to fulfill the administrative purpose effectively and solve the dispute, the administrative authority and the involved person should make a concession to each other, and under the prerequisites of not conflicting the rules and regulations, the administrative authority are permitted to conclude the agreement of Administration Settlement with the people, which can not only save a lot of administrative cost, but also easily make the related people more convinced. And because the purpose of the FTC is to promote the economic benefits and public interests, in this particularity, the FTC should permit the administration to conciliate the agreement of Administration Settlement even more. However, there are only four case to conciliate at present, in time sequence are related to INTEL, Mattera, RCA and Microsoft respectively. But with reference to all foreign legal system (ex. U.S.A.), most of them adopt the Administrative Settlement measures to deal with the competition practices. By this difference whether it is aroused from the differentiation of the legal system of Taiwan, and is it necessary to improve, the author is trying to discuss the issues within this thesis.

This thesis is to discuss the Administrative Settlement system of the FTC from the principle, practical operation procedure and also include case study, and also to analyze its legal nature, legitimacy, shutting purpose and relevant disputes issues. Moreover, it also compares the legal system of U.S.A. and then complement with the interview of the experts in this field. The author wish this research will cause the attention to the authority involved, and then make for the reference when executing the Law of Fair Trade in Taiwan to promote the legal system of our country to meet the world trends.