破壞式創新之監管架構

Abstract

破壞式創新隨著數位化的發展，成為時下備受討論之話題，本論文將跳脫破壞式創新在商管領域之討論，從法律層面檢視此類創新之監管議題。 回顧我國政府陸續推動之法規鬆綁政策，其中，又以「監理沙盒法制」作為近期之管制鬆綁焦點，惟綜覽相關研究，鮮少由實效面切入，探究創設各該制度之正當性基礎，故而本文將導入比較法作為借鏡，詳加辯證該等制度之實效性。 本文認為，與其大肆移植外國法訂定監理沙盒法制，毋寧應優先檢視既有制度存在之問題，若未調適既有制度之弊病而僅盲目立法，顯難謂妥適。舉凡行政程序法之法規命令、行政指導皆有重新審酌之必要。此外，監管手段不應趨於單一，多元化之監管手段方能妥善因應新創事業之監管挑戰，借鏡美國多元之管制機制，我國也應考量將分級執照制度化之必要性。至於管制鬆綁後，如何確保行政正確性，則有賴行政組織與行政程序之制度設計，使主管機關之權限行使受到充分的監督。 跳脫監理沙盒唯一解之思維，本文將深入討論管制鬆綁下實驗性監管之機制，並充實箝制行政濫權之協力管制機制，以更加多元之管制手段建立起整體管制架構。

Since the theory was created in 1970, 'Disruptive Innovation' is not a brand new concept, however, along with the development of digitalization, the theory itself, as well as the industries categorized by the theory, have again enjoyed an unstoppable rise in popularity. Innovations such as Robot, AI, Unmanned Vehicles, Sharing Economy, Internet of Things, Fintech, and Big Data have been viewed as the most promising field which could bring tremendous 'Disruption' toward the existing market and value network. Confronting the aforementioned situation, 'how to appropriately regulate the innovations in a more flexible and open-minded way without hindering it,' has therefore become the problem awareness of the study. Through examining the current regulatory policy and the deregulation among the innovation industries, the study aims to rebuild the supervisory structure for disruptive innovation by replacing rigid regulation with 'Experimental Regulation' and 'Collaborative Regulation.' The study starts with the introduction of research purpose, research methods and research architecture. After clarifying the background information, the study will briefly define the theory of disruptive innovation as well as analyze several regulatory problems under the current regulatory structure in the second chapter. The third chapter will take foreign regulation as reference: the regulatory reform by means of legislating the Act on Strengthening Industrial Competitiveness in Japan; the invention of the regulatory sandbox in U.K.; the deregulation structure in the U.S. would be thoroughly examined in this section. According to the comparison of these supervisory structures, the study would propose three suggestions in chapter four. First, from the result-oriented standpoint, the Act on Strengthening Industrial Competitiveness as well as the regulatory sandbox shouldn't be considered as the only solution. Instead of transplanting these foreign regulatory structures, the regulatory strategies should be more diverse. Without transplanting the regulatory sandbox approach, the deregulation in the U.S. emphasizes the importance of no-action letter('NAL'), special charter and piloting. By launching these various and experimental regulations, U.S. has been leading the development of disruptive innovation for the past decade. Second, Owing to the time-consuming legislative procedure, the legislator can barely respond to the regulatory issues instantly. Hence, the legislator should authorize more legislative power to administration to enact the temporary order or experimental guidance, which could diminish the pacing problem under the current structure. Third, the authorization should be based on the sufficient democratic legitimacy. Thus, the supervisory structure should strengthen the implementation of participatory democracy in administrative commission, adopt the collegial system as the core of the decision-making procedure. Besides, public hearing and negotiated rulemaking should be asserted during the administrative process.