論經濟行政法上之競爭者訴訟

Abstract

競爭者訴訟係指「一種藉助於法院之權利救濟途徑，以達影響行政機關所為分配決定或歷程之法律制度」，在體系上被劃歸為「第三人訴訟」之一種次類型。在行政任務私人化、解除管制、開放市場、引進競爭機制等現代行政革新風潮推波助瀾下，競爭者訴訟在經濟行政法領域之應用有日益擴張之趨勢。我國行政法院裁判實務及行政法學說向來雖以「保護規範理論」作為第三人是否具有訴訟權能之判準，然將此等以「個人－國家」垂直對立雙邊行政法律關係為建構基礎之理論，適用在經濟行政法「私人－私人－國家」水平及垂直交錯之多邊衝突法律關係架構上，顯然格格不入、難以操作。就此，德國學界晚近針對多邊衝突行政法律關係特別發展出之保護規範理論操作公式，於判斷原告有無競爭者訴訟之訴訟權能時，即頗值我國行政法理論及實務借鏡。\\r人民得否提起國庫防禦訴訟，請求法院判命國家終止具競爭影響性之經濟活動，亦屬研究經濟行政法上競爭者訴訟之重要課題。對此問題，德國聯邦行政法院裁判基本上乃呈現出由否定轉至肯定之發展趨勢。我國截至目前為止之訴訟實務雖尚無國庫防禦訴訟裁判之作成，但在公營事業紛紛導入企業化經營模式，並日趨以追求營利為事業目的之現今發展脈絡下，德國法院填補私人競爭者權利救濟缺漏之積極作法，對我國深具啟發性，值供行政法學理及實務參酌。

Competitor litigation is a legal method used to assist the court’s decision on resources distribution or progress by administrative organizations. It is categorized under third-party actions. In response to modern administrative innovations such as privatizing administrative tasks, dissolving control, opening markets, and introducing competition mechanisms, competitor litigation has been spreading at an ever increasing rate. Taiwanese administrative courts and administrative law scholars consider the doctrine of the protective scope of the norm as the criterion whether a third-party has a standing or not. The doctrine of the protective scope of the norm is based upon the administrative law relationship between the higher status state and the disadvantaged individual. Nevertheless, when applying the theory to the concept of economic administrative law, multiple conflict legal relationships between private-private and private-state entities, seems unwieldy and difficult to operate. Recently, several German scholars came up with an operational formula for the doctrine of the protective scope of the norm. The formula focuses on facing multiple conflict administrative law relationships. The formula is especially worthwhile for our administrative law theories and practices to refer to when judging if the plaintiff of a competitor has a standing or not. The possibility for the people to file a suit to terminate the state’s competing economic activities is also an important issue to study on the competitor litigation in economic administrative law. According to recent judgments of the German Federal Administrative Court, it is possible for the people to file suit against the state’s competing economic activities. The freedom of competition in German Basic Law or the public purpose clause for public economic activities in communal law is now considering being the basis of standing for the plaintiff. So far, Taiwan has no made judgment related to such litigation. However, numerous public enterprises have started to use business management as a method to run it themselves, and consider profiting as its final goal. The positive actions made by the German court in order to protect private competitors’ rights are well worth studying. It could be useful and inspiring to our administrative law theories and practices.