- 期刊
德國競爭法之最新發展－GWB及UWG之修正
Latest Development of German Competition Law-Amendments of GWB and UWG
摘要
營業競爭限制防止法及不正競爭防止法爲德國規範市場行爲最重要之兩部法律，分別在近一、二年有重要的修正。促成營業競爭限制防止法此次修正之重要背景爲配合與歐盟卡特爾程序法之調和，新修正法在體系結榜上雖未有特別的變動，但此次修正對於傳統聯合行爲之規範有整體較大之變革，刪除了舊法第一章第二節有關垂直交易限制之規定，納入第一條之規範，引進新法第二條法定例外之制度，亦即只要事業行爲符合第新法第二條之情成要件，即可受到豁免。不正競爭防止法此次修正特具意義，因其取代了快要一百歲的嘗不正競爭防止法，新法對於條文規範體系有了全新的安排，修正背景包括了不正競爭防止法之現代化、自由化、與歐盟法之調和，和加強對消費者之保護。此次修正，將具有概括性之不公平競爭行爲條款，規定於第三條，取代了舊法第一條之規定，在案例類型上，將過去司法實務之見解和歐盟不正競爭防止法之發展，適當地明文化而見於新法第四條到第七條之規定。
並列摘要
GWB and UWG, the most significant laws to regulate market behaviors in Germany, had been amended respectively in past two years. The fundamental reason stimulating amendment of GWB was for harmonizing european cartel procedure law. For the amended GWB, there was no special change in terms of its structure. But, in terms of regulation on traditional cooperative behavior, integrative changes were made. Articles relating to vertical agreement for restrains of competition in Chapter 1 of former GWB were deleted and concluded in Section 1 of amended GWB. Also, the concept of legal exception was included in the amendment. The special exemption rules were almost completely replaced by a general exemption. That is, as long as business behaviors are consistent with Art.81 (3) EC Treaty, they are eligible for exemption rules. The amended UWG is especially essential because it replaced the almost 100-year old former UWG. It displays new arrangement of all articles. The fundamental reasons stimulating amendment of UWG were modernization, liberalization, to harmonize EU regulations, and to enhance consumer protection. General articles regulating unfair competition are included in Section 3 of new UWG, they replaced related articles in Section I of old UWG. In terms of types of cases, the amended UWG proclaimed past opinions on judiciary practices and development of EC Competition Law in Section 4 to Section 7 of the amended UWG.