寡占市場中廠商之平行行為與一致性行為─兼評中油、台塑聯合漲價案

蔡宗儒

中文摘要

寡占廠商因市場結構的特殊性,本於自身經濟利益最大化之理性考量,廠商間會有意識的為價格跟隨行為,而導致寡占廠商互不競爭之結果。而此市場結構之因素所形成廠商間行為一致之現象,得透過賽局理論加以證立。因寡占市場中以有意識之平行行為為常,故實務上所面臨的難題為:當廠商間存在外觀一致之行為情狀時,其原因究竟是由於有意識的價格跟隨而來;還是廠商間存在聯合行為,而應受競爭法之非難?端賴公平會能否證明廠商間存在聯合之合意。因為證明之困難,實務上便發展出「促進行為」理論,而認為當廠商間存在這些促進行為時,即得推論其間存在聯合行為之合意。然而,當存在促進行為時,該促進行為是否能當然地推論合意之存在,有所疑義。中油與台塑間數十次透過媒體提前預報價格調漲,而達成一致之行為,即涉及上開問題。公平會認為兩公司間透過提前預報價格而為相同之調價行為,構成一致性行為,而予處罰。但在立論基礎上,以提前預報價格之調漲,而認為雙方間存在聯合行為之合意,如此推論,是否妥當?有無不當擴充「合意」之概念?值得深思。

 

Conscious Parallel Behavior and Concerted Practice of Firms in Oligopoly Market - The Case of Concerted Pricing between Chinese Petroleum Corp. and Formosa Petrochemical Corp.

Tsung-Ju Tsai

abstract

Firms of oligopoly market usually behave similarly, because of the particular structure of the market in which firms interact with each other intensely. When one firm ehaves, the others react immediately, and therefore, as one firm raises prices, his rivals, in their rationality, bound to behave in the way which is parallel to what the firm did. And this situation can be justified by “Game Theory”. Even the conscious parallel behavior ends up in noncompetitive circumstances, but without any agreement by the firms, there’s no reason to punish them. So it’s difficult for Fair Trade Commission to prove that there exists agreement between firms in the oligopoly market. The theory of Facilitating Devices is exercised in practice due to the difficulty of proving. When facilitating devices exist, Fair Trade Commission regards them as evidence to prove that there is cartel agreement between firms, and concludes that the firms violate the Competition Law. However, there are some doubts whether facilitating devices could be immediately regarded as the existence of agreement or mutual understanding. CPC Corporation and FPCC have similar price in recent years. Does this situation results from the preannouncement of price changes or just because the unique structure of oligopoly market? The Fair Trade Commission considered it as concerted action because of the mutual understanding of these two companies. But what does mutual understanding mean? Could preannouncement of price changes be regarded as mutual understanding? And why are the similar behaviors of these companies not conscious parallel behaviors? Those are problems worth to be discussed.