Hsin He Advertising Co. Ltd.

Taipei High Administrative Court Judgment（2007）

Case:

Key Words:

presale house, Plan of Sub-metropolitan in Taipei, untrue advertisement

Reference:

Taipei High Administrative Court Judgment (96) Su Tzu No. 4280

Industry:

General Advertising (7311)

Relevant Laws:

Article 21 of the Fair Trade Law

Summary:

1. The Plaintiff in this case (Hsin He Advertising Co. Ltd.) was complained of for the following matters: When the Plaintiff was selling presale houses for the construction project of "Paris Movement" in March 2006. One of its on-site salesman held the advertisement of "Plan of Sub-metropolitan in Taipei" that was published in Apple Daily by the Plaintiff, and emphasized the advertisement wording that the farmlands around the construction site were in agriculture conservation zone which prohibited any construction. Thus nothing would affect the views of landscape from "Paris Movement" , and the housing quality and serenity would be preserved. However, there were circumstances that were not consistent with the facts and the Plaintiff was suspected of being involved in disseminating untrue advertisements. Based on FTC’s findings after investigation, the Commission believed that the representations regarding the quality of the product, as specified in the advertisement of "Plan of Sub-metropolitan in Taipei" for the houses pre-sold by the Plaintiff were false, untrue, and misleading, and the Plaintiff violated Article 21(1) of the Fair Trade Law. The Commission, therefore, issued the Disposition Kung Ch'u Tzu No. 096074, and punished the Plaintiff in accordance with the forepart of Article 41 of the same Law. The Plaintiff was dissatisfied with the FTC decision and filed an appeal to the Executive Yuan that was denied. The Plaintiff further filed this administrative litigation to the Taipei High Administrative Court.
2. The determination as to whether an advertisement for a presale house is false, untrue, and misleading should base on objective conditions at the time when the advertiser use the advertisement. In this case, if advertiser of the advertisement has been foretold or known that the described content of the product is unable to match with the representations printed in the advertisement. Then, the advertisement is false, untrue, and misleading. With respect to the so-called "Agriculture Conservation Zone", Land No. 221-1, Section XXX, Sinjhuang City, Taipei County, marked in the said advertisement, it was the farmland. However, this place is listed as Type II Commercial Area according to the urban project of the Sinjhuang City Office, Taipei County, that had the lands divided for uses. The land registration transcription, the certificate on division of lands for uses ( lands used for public facilities) under the urban plan of the Sinjhuang City Office, Taipei County, which dated March 8, 2007, and a copy of the cadastre map transcription attached to the disposition file could be taken as evidences of the actual use of the place. Therefore, the inference that the marked land does not fall under the category of "Agriculture Conservation Zone" was ascertained. Before the Plaintiff published the advertisement on July 16, 2005, it was already quite familiar with the fact that the land where the "Agriculture Conservation " marked in the advertisement of the presale houses of "Paris Movement" did not fall under the "Agriculture Conservation Zone" category. The Plaintiff, however, published the photo and the advertisement with the wording of "Agriculture Conservation Zone" to draw consumers – it was fairly clear that the Plaintiff had the intention to make false, untrue, and misleading representations or symbols. The Commission firmly found that it was obvious that the Plaintiff violated the Fair Trade Law because the representations of the content of the product were false, untrue and misleading.
3. In conclusion, the original punishment imposed on the Plaintiff in this case was completely correct and the decision of the appeal should be uphold. The action brought by the Plaintiff to merely persisted the aforesaid words and pleaded the court to dismiss the original decision was groundless. The action should be overruled.

Appendix:
Hsin He Advertising Co. Ltd.'s Uniform Invoice Number: 12911025
Summarized by Lai, Chia-Ching; Supervised by Lee, Wen-Show