A Regulation Study of Joint Research and Development on Fair Trade Law

• Main Authors: Shih-Chien Chiu, 邱仕謙
• Other Authors: Shang-Jyh Liu
• Format: Others
• Language: zh-TW
• Published: 2007
• Online Access: http://ndltd.ncl.edu.tw/handle/00634456113318131834

碩士 === 國立交通大學 === 科技法律研究所 === 95 === In order to consolidate market competitiveness, enterprises have to engage in research and development activity continuously. For most of enterprises, this kind of activity is too highly risky and costly to finish independently. Joining in a joint research and development venture is a good strategy for them to leverage the high risk and expensive cost problem. Of course, the participants may be or may not be competitors. However, if the partners are competitors or potential competitors, this venture will be scrutinized more closely for anticompetitive impact. Competitors or potential competitors organize a joint research and development venture is a serious anticompetitive issue in many countries’ competition law. In Taiwan, this kind of venture is classified into one type of concerted actions and intensively regulated by Fair Trade Law Article 7 and Article 14. The Article 14 allows no joint research and development venture unless it meets specific requirements on Article 14 and Article 14(2). In real circumstances, those regulations don’t show perfect function in keeping market competition. In fact there are so many ventures promoted by government or organized by enterprise spontaneously are born without approved by authority. The gap between legal regulations and industrial facts reflect the Fair Trade law does not function the main purpose must be reached. In this study, we tried to prove the requirements of concerted action in Fair trade Law for regulating Cartel is not proper being used to joint research and development concerted action. Then we get some conclusions. First, this kind of regulations will drive authority to expend extra enforcement cost or the joint research and development participants face high legal risk in violating Fair Trade Law. Second, Article 7 restricts partners are competitors or potential competitors is also not proper for joint research and development concerted action. Finally this study submits suggestions for solving those problems mentioned above. It concludes that Fair Trade Law must release the prohibition intensity in joint research and development from “generally prohibited” to “generally permitted”. This target could be achieved by enacting “black clauses” for saving authority’s censorship cost and by setting supplementary duties on participants in authority’s joint research and development approval for decreasing authority’s monitoring cost.