| Summary: | 碩士 === 國立政治大學 === 法律學系 === 106 === The purpose of the present study is to identify and address the obstacles faced by the Taiwanese regime of private enforcement of competition law. This study starts by establishing the theoretical functions and importance of private enforcement and introducing the current U.S., EU and Taiwanese regimes of private enforcement. Next, a quantitative survey of damages cases filed in Taiwanese courts and the qualitative results obtained through interviews of practitioners will serve as the bases for the ensuing analyses that identify, and thereafter address, the possible obstacles hindering the effective operation of the Taiwanese regime of competition damages. Finally, this study discusses the problems that might emerge following the removal of the obstacles to private enforcement.
This study contributes to the current literature in at least two dimensions. First, it adds to the current theories of the function of private enforcement by elaborating on how private enforcement achieves deterrence and enhancing the efficiency argument for the compensation function. Second, it identifies, quantitatively and qualitatively, the possible problems vis-à-vis undertakings and practitioners that (potentially) wish to pursue damages claims in Taiwan.
In the theoretical dimension, I argue that private enforcement benefits the maintainence of competition orders in that (1) it achieves deterrence, by allowing legal consequences against infringers to approach the optimal level in a cost-minimising fashion; and that (2) it achieves compensation, thus promoting ex ante efficiency in resource allocation by potential victims, and enhancing competition ex post by restoring victimised rivals toward the competitiveness but for the anticompetitive behaviour.
In the empirical dimension, I find that one of the major obstacles to the present regime rests with the rule that public enforcement does not interrupt limitation periods for damages claims. Such a rule forces victims to commence damages actions before a final public-enforcement decision is rendered, the majority of whom, as the quantitative results show, failed to establish the existence of infringements before civil courts. Another obstacle is related to the current court practice in applying the rules of disclosure of evidence under the Civil Procedure Code, which requires the party requesting disclosure to specify the object of disclosure. Interestingly, the absence of opt-out collective redress mechanisms, which, according to the literature, may have also discouraged damages actions is concluded to be unadvisable, as the role assigned thereto can be performed by public enforcement at a lower cost.
In addition, I identify and discuss further issues that can reasonably be expected to emerge in a regime where private enforcement is no longer barred de facto, including the proper interaction between public and private enforcement, the permissibility of the passing-on defence (and thus indirect purchaser standing) and umbrella claims, the assessment of causation and amount of damages, and the role of punitive damages.
The issue of private enforcement is a profound and somewhat troubling one. The efficiency analysis is itself a challenging task, let alone the weighing of numerous values that can hardly be quantified, e.g. corrective justice. Future studies, both theoretical and empirical, are undoubtedly needed to establish the optimal private enforcement regime for Taiwan, which will strengthen the role of competition law to secure the foundation of a free economy.
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