The second-hand vehicle market in Europe, America, and Japan has entered the mature period and showed the following market characteristic: 1.Large business volume and has formed effect of scale Volume of the second-hand vehicle business in developed countries is lot more than the volume of the new vehicle. Generally it is above a time. According to the summary statistics, the annual sales volume of American second-hand vehicle is already 2.5 times of its new vehicle sales volume, and the year sales volume of Japanese second-hand vehicle has continuously surpassed its new vehicle the sales volume for many years. Just because of huge second-hand vehicle market, the developed countries can maintain a stable and huge market of new vehicle market. The related data demonstrated that, in a mature auto market, the average of vehicle discard cycle is about 8 - 12 years, but the average of vehicle renew cycle is less than 4 years. It is obvious that the second-hand vehicle market has quite a few of the spaces to operate. 2.Lower price and balance the supply and demand quantity in the market The 21st century has become "the automobile society". Cars have become an essential transportation for the modern families, but consumers from different levels have different demands for cars. Part of the consumers, which from middle class and above mainly buy new cars. They pay more attention to the reliability of the vehicles instead of the price. Most of them would consider changing cars after four or five years when the reliability of the vehicle go down and the chance of accidental breakdown increase. But consumers, which are below the middle class, then take the second-hand car as the main consideration. It is because of the lower price consideration. The price of second-hand car is about half of a new car. It's still quite reliable to be used for two to four years. And the loss of depreciation value would be smaller than buying a new car. Such second-hand car is still possible to be sold once more after using. The price then would be only 20%-30% of a new one. Those cars are mainly sold to the people who have lower income or students who have no income. Moreover there are some older cars that even cost less, which costs only about 5%-10% of a new car. Although it is a must to spend certain money on maintenance costs, the total cost would still be the lowest. It is quite beneficial. Therefore the supply of second-hand vehicle is a little bit larger than the demand quantity. The price of the second-hand cars is also lower. That is to balance the supply and demand quantity in the market 3.The system organize well and promote the market to be developed Second-hand vehicle markets in the developed countries generally form a perfect purchasing and selling system. And that promotes the organization of second-hand auction and wholesale. Governments formulate related laws of second-hand vehicle trading to protect consumer's rights and interests. Each organization runs fairly and effective and that makes the price in second-hand vehicle markets of the developed countries tend to be stable. Consumers do not have to worry about the loss which is from the unstable value of vehicles. The value of second-hand vehicles affects the guarantee value of vehicles and the stimulation of buying new cars deep and far. The steady of second-hand vehicle markets has made new- and second-hand vehicle markets promote fairly well. The generality of second-hand vehicle markets in developing countries are: 1. Less source and higher price Because of the average income of the developing countries is lot more lower than the developed countries, the proportion of wanting to buy second-hand cars is lot more than the developed countries. Furthermore, vehicle renew cycle of these countries is longer than the developed countries. Therefore make the source of second-hand vehicle to be limited. And the situation of supply is unable to meet the demand is very common. It has made the price of second-hand vehicle become lot higher than the developed countries. Even though, the price of second-hand cars is still lower than new cars. Considering from the economy, second-hand cars are still popular. 2. The trading is flexible and the management is tend to be ruled day by day The main characteristic of the second-hand vehicle markets in developing countries is flexible trading. There are direct personal trading, store trading, and also auction trading. Anyhow they regulate and run by the market rules themselves. Although the second-hand vehicles markets have go along for many years, it is still immature. There is still a certain difference in scale, price, market standard, and market operation from developed countries. These countries have already realized this and are now trying to improve. They are endeavoring to regulate the law and the policy and also coordinating with the new- and second-hand markets. They are trying to regulate the price and balance the supply and demanding. These have made their trading way become closer to the developed countries. Market of Taiwan has also followed this tendency to Europe, America, and Japan. Comparing with the developed countries, the second-hand vehicle markets in Taiwan starts later but develops faster. The trading way is like the Eight Immortals crossing the sea, each one showing his special prowess. The trading pattern and the legal rules are still not soundness. The disputes happen quite often. Before the information of a new car has not fully exposed, it is risky to purchase second-hand car. Consumer could just be the last white mouse for the sellers and can only pray for himself. Making a comprehensive survey of second-hand vehicle markets in developed countries like America and Japan, the policy, the law and the coordination between the new- and second-hand vehicle markets are the main reason to make second-hand vehicle markets become prosperous in these countries. Because of the legal standard is incomplete in our country. The problem of asymmetric information exists in the market. And that makes the rights and the interests of consumers can not be protected when they purchase cars. This research is mainly investigating via interviews, related documents, and theories, and also case study and analyze. Then induces the system which can promote consumers' rights and interests and also to make consumers' rights and interests to be protected. Therefore they can feel at ease buying cars and also trying to provide proprietors a way to make reference of the system establishment.

本文以公平交易委員會於2007年8月30日第825次委員會決議，就國內三大乳品公司，即統一企業股份有限公司、味全食品工業股份有限公司及光泉牧場股份有限公司於2006年8月1日同步調漲鮮乳銷售價格一案為例，探討一致性行為與公平交易法規範關係之研究。 本案值得探討之處在於公平會於本案之處分中，係首次依公平交易法第24條、行政罰法第10條，論以被處分人未克盡防止「足以影響交易秩序之顯失公平行為事實發生」義務之行政法上不作為犯。 本文經研析公平會於處分書中所載事證與公平交易法第24條、行政罰法第10條之涵攝及適用情形後，試提出評析意見。另據本案所顯示之事證，本文認為公平會於本案執法上，若採以一致性行為論處似較為妥適，並提出此看法之適用見解。 / The objective of this dissertation is to expound the relation between concerted action and Fair Trade Law by studying administrative action for concerted increasing price action in three leading milk products companies case. This case is wothy studying for it is the very first time for FTC to punish actors’breaching of duty under administrative law for fail to prevent the occurrence of the obviously unfair conduct that is able to affect trading order. By analysising the disclosed evidences and the way FTC applying article 24 of Fair Trade Law and article 10 of Administrative Penalty Act to the case, the auther make a try to present the concerning legal opinions. The study suggests it would be a proper way to deal with the case by applying the concerted action theory. At last, concerning legal opinions are also presented to support the conclusion of the study.

每當承辦知名企業間因廣告行銷而發生不公平競爭的法律爭議時，作者最反覆思考的問題不外是：究竟一則比較廣告在什麼程度以內，與其他競爭對手間的產品比較以及資訊揭露，對消費者來說是最有利，而且對競爭者來說是最公平的？換句話說，就是使用「比較廣告」這樣的爭議性行銷方法，在什麼樣的限度內，是比較可以恰如其分地，一方面完成它原本行銷應達成的目的，帶給消費者充分且必要的消費資訊，另一方面也顧及了競爭法下的公平尺度，沒有用超過目的之手法損及競爭者；接著的問題是，現行國內的公平交易法規是不是已恰如其分地扮演了這樣一個尺度呢？ 　　基於以上目的，本研究分別從行銷管理、公平交易及主要國家競爭法立法例的觀點，廣泛探討相關文獻，切入檢視過去與比較廣告有關的研究，發現過去文獻對比較廣告展現創意的「不安全領域」和「安全領域」之探討，確實不足。故本文採用質性研究中的個案法及文件分析，藉由觀察公平會自1992年至2007年間的相關案例，選出指標案例共十二則，希望對透過實際個案之處分書或不處分書的解析，探討我國公平會對比較廣告違法性的認定標準，進一步釐清不法比較廣告與創意比較廣告的分際。 　　藉由觀察公平會對該十二個指標案例作成決定時所示的見解，本研究發現公平會對於其持以處分或不處分比較廣告的準則，已衍然成形。首先，如果一個比較廣告有「真實性原則」、「客觀性原則」或「資訊充分揭露原則」三原則中，任一原則的違反，導致成為一個不真實、不客觀或資訊未充分揭露（或兼具其中二者或三者）的比較廣告時，即已經存在「不法元素」，可能構成違法，此形成本研究之命題一。其次，公平會也明白宣示了比較廣告內容或方式的「安全區域」，本研究將此一發現名為公平會的「愈抽象愈安全原則」，並且認為此處即為比較廣告應該盡情展現創意之所在，此形成本研究之命題二。作者並盼望繼起的有志之士，往後能嘗試大膽建立各種假設，小心驗證本研究已經建立的兩項命題，以檢視其周延性和正確性，俾供企業未來在行銷上運用比較廣告時，能大膽展現創意，但又不致於違法的參考，同時亦對公平會及業者分別提出建議。 / Every time when Author undertakes unfair competition disputes between well-known enterprises arisen out of advertising and marketing, the question the Author will ponder over and over is: with respect to the comparative advertising, in terms of product comparison and information disclosure with other rivals, to which extent the comparative advertising will be the most beneficial advertising to the consumers and the most impartial advertising to the rivals. In other words, to which extent can “comparative advertising” be used appropriately, on one hand complete goals the original marketing was intended to achieve, bring sufficient and necessary consumption information to the consumers, on the other hand take into account of fairness criterion under competition law without application of technique beyond its original purpose which would cause damage to the rivals. Then the next question is: whether the existing Fair Trade Law has adequately set forth said criterion? Based on the above goals, from respective viewpoints in marketing management, fair trade and legislation precedent of competition laws of major countries, the author, through extensive probing into past documentary records and reviews of past researches related to comparative advertising, realized that researches on “unsafe territory” and “safe territory” to show creativity of comparative advertising in past documentary records are not sufficient. Therefore, the author has adopted case method and document analysis used in qualitative research. From among the relevant cases handled by the Fair Trade Commission between 1992 and 2007, the author has chosen twelve distinctive cases, aiming to probe into criterion for determination of violation of comparative advertising by Fair Trade Commission of the ROC, and further verification of the differences between unlawful comparative advertising and creative comparative advertising through study and analysis of disposition or non-disposition decision of each individual case. Upon review of administrative interpretations rendered by the Fair Trade Commission towards said twelve distinctive cases, the author realized that rules governing disposition of comparative advertising by the Fair Trade Commission has taken shape. First of all, when a comparative advertising breaches either the “principle of truthfulness”, the “principle of objectiveness” or the “principle of information disclosure”, the comparative advertising will become an unreal, non-objective or non-disclosed comparative advertising (or both or all), some “illegal elements” have occurred, which may constitute violation of law, this forms the first proposition of this thesis. Secondly, the Fair Trade Commission has clearly announced “safety areas” of content or manner of the comparative advertising, the author names this discovery as “more abstract more safe principle”, and believe this is the area where comparative advertising shall exert its best effort to show its creativity, which forms the second proposition of this thesis. The author expects that future researchers will be able to create hypotheses, examine and verify two propositions this thesis have already built up, in order to investigate its thoroughness and correctness, so that enterprises could bravely demonstrate its creativity when applying comparative advertising for the marketing.

本論文主要是在探討現行公平交易法第四十五條「依照著作權法、商標法或專利法行使權利之正當行為，不適用本法之規定」，其中有關專利權之部分。蓋專利權屬於智慧財產權之一種，係國家以法律授予私人的一種獨占、排他權利，亦即，專利權人就其所獲之專利請求範圍，係處於一種法定專有排除他人未經其同意而製造、販賣、使用或進口該專利之獨占權能地位。專利法藉由此一賦予專利權人特定期間之專屬排他權 (Exclusive Right)/獨占壟斷權，以提供一定之經濟上利益為誘因，藉此鼓勵發明人『公開』符合可專利要件；而競爭法制係為維護公平、自由競爭秩序與環境而必須規範獨占、聯合、結合等限制競爭行為及不公平競爭行為，兩者之糾結關係應如何釐清？素有經濟憲法高地位之稱之競爭法制，應如何在法律特設專利獨占權之制度目的考量下，揮舞它這把大刀？又法律特設專利獨占權之制度目的，又會如何影響競爭法制規制專利權利之界線，是本文想要探究、嘗試解決之議題亦為本文研究目的所在。 鑑於目前我國對於公平交易法第四十五條之法律定位爭議甚大，復以目前我國對於專利權之正當權利行使行為之實務摸索尚處於萌芽之未臻成熟階段，本文擬以專利制度之制度目的及專利財產之本質出發，再借鏡國美國法制百餘年之行政執法、司法實務之實證觀察方式，試圖對目前我國越來越多之專利權權利行使與公平交易法之交錯相關議題及爭議，提出一些可能的思考方向與解決之道，並以法律體系解釋、法律目的解釋、市場經濟以及專利制度之制度目的等思維角度，嘗試定義公平交易法第四十五條之專利權正當權利行使行為，並將本文所建議之審查基準與審查步驟作成審查流程圖，作為本文之總結。

本文研究之議題，並非有關政治面或其他社會面所稱之杯葛，而是競爭法領域中之杯葛行為，主要為公平交易法第十九條第一款所規範之情形。 本文之研究目的，主要希望能對公平交易法第十九條第一項之構成要件、違法性、法律效果等數項議題，參考他國立法例及學說進行研究，並就實務處理進行分析檢討，以及提出管見之看法及建議。 本論文共分為七章。第一章為「緒論」，分為研究題目之說明、研究動機與目的、研究方法、研究範圍及限制，及研究架構等部分，旨在介紹論文的基本方向與架構。 第二章，則是討論「我國法對於杯葛行為之規範及相關內容」。於第一節中，首先進行杯葛行為之基本介紹，以使讀者瞭解本文所處理之客體為何，並且明瞭規範杯葛行為之目的。第二節之內容，是針對公平交易法第十九條第一款，為一全面性介紹。第三節，是就公平交易法第二十四條之適用可能，為一討論。第四節，則是討論民法部分於杯葛行為之適用可能及適用情形。 第三章，討論「美國法對於杯葛行為之規範及分析」。第一節之概說，乃為後述討論內容作一引言。第二節，是就規範杯葛行為之條文－休曼法第一條、聯邦貿易委員會法第五條，作一相關闡釋。第三節，是就美國判例，參考學者Hylton, Keith N.教授的見解，區分三個不同時期，介紹杯葛行為於實務之不同評價演變。第四節，則對本章之內容作一總結。 第四章介紹「德國法對於杯葛行為之規範及分析」。第一節之概說，乃為後述討論內容作一引言。第二節，是就限制競爭防止法第二十一條第一項（GWB §21Ⅰ）為相關闡述。第三節，是就不正競爭防止法第三條（UWG §3），其適用情形及相關內容進行分析。第四節，是就德國民法有關侵權行為之規定（BGB §823、§826），討論杯葛行為之適用情形。第五節，乃討論杯葛行為與憲法上言論自由保護其間之關係。 第五章乃在探討「杯葛行為於我國法制面及實務操作之爭議問題研究」。於第一節中，處理者乃杯葛行為之體系定位之問題。第二節，進行構成要件之細部問題分析；例如，發話人究否應具有一定市場力量？第三節，針對杯葛行為之違法性，分析是否存在進行杯葛行為之正當理由。第四節，旨在討論杯葛行為之法律效果問題。第五節，核心集中於公平會對於同業公會所發起之杯葛行為，究應以第十四條或第十九條第一款論斷為妥？第六節，主要在處理杯葛與其他概念之區別。第七節，則在處理公平交易法第十九條第一款與其他條文競合之問題。 第六章之內容為「實務重要案例之分析及檢討建議與結論」。此部分本文選擇較具重要性之公平會處分案，整理實務之看法及處理模式，並加以分析及檢討。 第七章則是進行「結論與建議」。本文將彙整前面各章之重點，針對本文關心之相關爭點及問題，提出拙見，以供參考。 / This thesis focus on the topic of boycotts issues in competition law, especially article 19 subparagraph 1 of the Fair Trade Law of Taiwan. There are 7 chapters in this study. In chapter 1, there is an introduction to this research such as the structure of this paper. Chapter 2 discusses the regulations about boycotts in Taiwan, including article 19 subparagraph 1 and article 24 of the Fair Trade Law and article 184 of the Civil Law. Besides, in this chapter there are essential introductions to boycotts, e.g. what purpose the party has. Chapter 3 observes how U.S. treats boycotts. According to the observance of professor Hylton, Keith N., the court used different standers to judge boycotts in various periods. This chapter will focus on what doctrine the court adopted to consider boycotts－rule of reason, or illegal per se? On the other hand, chapter 4 introduces rules of boycotts in Germany. There are several important parts: GWB §21Ⅰ, UWG §3, and BGB §823、§826. Besides, there is a point about the relation of boycotts and freedom of speech. Chapter 5 deals several problems of boycotts in Taiwan practices and Fair Trade Law. Besides the opponents of the articles, this chapter tried to solve problems such as should we consider market power of the party? Further more, there are comparisons about boycotts and other similar concepts or topics. Chapter 6 proceeds analysis about the cases in Taiwan practices, especially decisions of the Fair Trade Commission. In chapter 7 the author offered his opinions about some issues of boycotts.