碩士 / 東吳大學 / 法律學系 / 100 / German Legal Scholar Rudolf von Jhering (1818-1892) once described the
purpose of law in the book as 「Law as a means to an end」,its essence is to say the
law has no meaning without a purpose ordeparted from what it meant to be.
German Legal Scholar Gustav Radbruch (1878-1949) further established the
foundation for his theory in his 1932 work, Rechtsphilosophie. He finds that law,
as a cultural concept, “is the reality the meaning of which is to serve the legal
value, the idea of law. “Radbruch argues that the idea of law may only be Justice.
Radbruch finds that although the idea of law is Justice, this alone does not fully
exhaust the concept of law.
Justice, he says, “leaves open the two questions, whom to consider equal or
different, and how to treat them. “To complete the concept oflaw Radbruch uses
three general precepts: purposiveness, justice, and legal certainty. Therefore,
Radbruch defines law as “the complex of general precepts for the living-together
of human beings”whose ultimate idea isoriented toward justice or equality。
Purposiveness is one of the three preceptsRadbruch uses to complete the concept
of law. It is the only relativistic component of the three。On the other hand, Greek
philosopher and polymath Aristotelēs (384 BC–322 BC), considered “justice” has
both a particular and a general meaning. In its general sense, it is a synonym for
virtue; the just man being the virtuous or good man. Conversely, in its more
particular sense, the only sense with which we are interested here, justice is
concerned with only part of virtue: giving persons their due. Aristotle maintains
that particular justice has two forms: distributive and corrective. That we can learn
that the law must have a purpose, anachievable goal which will justify its
existence.
Whilst the antitrust law philosophy among the countries (contrast to Fair
Trade Act of Taiwan) is to exploit the justification of “Competition” while
economist prevail that freedom of competition is the foundation of proficiency as
the free market mechanism isdriven by a “invisible hand”. Therefore state must
minimum or eliminate intervention to the free market mechanism.
~ IV ~
However, the say “invisible hand” is subject to failure since other factors
might cause the “invisible hand” to spin out of control, such monopoly & Cartel
activities. Therefore another mechanism needs to be in place to rectify the extreme
scenario. Monopoly & Cartel is no new invention but an ancient ploy,「Higher
ground and wider observation is the success to gain the most while trading」says
Mencius, means one must have better vision that penetrates behind the scene in
order to control the trade to get most gain out of it.
Most of economists praised and deemed “competition” is the core element of
free market and condemns monopoly & Cartel on the other hand, and convinced
the existence of Cartel activities will undermine the “invisible hand” hence hinder
the development of economic and marketproficiency, therefore absence of
motivation will obstruct innovation. Meanwhile, the consumer surplus decreases
since business will inevitably lower the production and raises the price once they
have the dominant position.
Antitrust law were laid out to pave the way to mitigate the negative influence
of monopoly & Cartel and being praised asthe foundation of economic laws, the
constitution of economic laws etc.,. Nowadays, the leniency treatment, exemption
permissions even immunity were granted amongst stringent antitrust laws to
utilities entities as well as publictransportation entities.
Question remains to be discussed in this article, whether the leniency
treatment within antitrust laws justify itspurpose as per say purpose of law? US
and EC de-regulations of air law will be studied and discussed to benchmark the
regulations and developments of airlines industry of China and Taiwan since
Chinese development of airlines industry is very much follows the trail of
Taiwanbut in much faster pace. The rationales, justifications will finally laid out in
conclusion to mirror the development and implementation of antitrust law on both
side of strait.
| Identifer | oai:union.ndltd.org:TW/100SCU05194051 |
| Date | January 2012 |
| Creators | Kuo-Hsiu Kan, 甘國秀 |
| Contributors | Jhen Yang, 楊楨 |
| Source Sets | National Digital Library of Theses and Dissertations in Taiwan |
| Language | zh-TW |
| Detected Language | English |
| Type | 學位論文 ; thesis |
| Format | 162 |
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