寡占廠商因市場結構的特性，因自身經濟利益最大化之理性考量，而生之有意識的價格跟隨行為，導致不須競爭就產生一致的行為，得透過賽局理論證明之。論水平卡特爾之構成要件，促進行為理論乃實務上所發展出來，用以解決合意要件之舉證困難。當事業之間存有促進行為，政府或法院得據以證明水平卡特爾協議之存在，構成違法的一致行為。產學之間爭論不休之際，除了經濟證據之考量，傳統法釋義學、法理學所扮演之角色何在？
Firms of oligopoly market usually behave similarly especially on price-fixing, because of the particular structure of the market in which firms interact with each other intensely. By Game Theory, we could find the above assumption proved.
Regarding the element of horizontal cartel, the theory of Facilitating Devices is exercised in practice due to the difficulty of proving the existence of “agreement.” When facilitating devices exist, governments or court regard them as evidence to prove that there is cartel agreement between firms, and concludes that the firm violate the Fair Trade Law because of their illegal concerted action.
However, there are still arguments between scholars. In addition to economical evidences, what is the value of Rechtsdogmatik? Where is the role played by Jurisprudence?
