Abstract:

Nearly a decade has passed since the Fair Trade Law (FTL) was promulgated on 4 February 1991 and took force on 4 February of the following year. As of the end of August 2002, the Administrative Court had rendered 308 judgments in administrative actions filed against Fair Trade Commission (FTC) dispositions. These statistics point to the abundance of case studies that have accumulated in the area of FTL. In specific cases, the opinions raised by the FTC have had a profound impact on the application and interpretation of the FTL, and the Administrative Court’s affirmation or non-affirmation of those opinions has also influenced the use and development of the FTL. Consequently, this study seeks to observe and assess developments in Fair Trade Law practice in the light of Administrative Court judgments from the implementation of the FTL up to the end of August 2002.

This key methodology of this research is the compilation of Administrative Court judgments concerning various types of FTL-regulated conduct, including judgments by the Supreme Administrative Court and judgments rendered by the Taipei High Administrative Court after the amended Administrative Litigation Law took force on 1 July 2000, and the collection and collation of general literature in the field, such as opinions contained in analyses of relevant judgments by experts or academicians, for reference. The research report is divided into four chapters: the preface in Chapter 1; the examination of administrative court judgments regarding cases involving restrictive competitive practices in Chapter 2; an in-depth examination of administrative court judgments in cases involving unfair competitive practices in Chapter 3; and the examination and analysis of the influence of administrative court judgments on future law enforcement practice of the FTC and conclusions in Chapter IV.

This study finds that, during the initial period after the FTL took force, the preponderance of administrative court judgments concerning FTC dispositions, and the grounds constituting those judgments, follow closely the content of the original FTC disposition, or take the administrative appeal decision or the grounds of the FTC decision as the grounds for the court’s judgment, indicating that the Administrative Court held the professional judgment of the FTC in very high regard, and generally affirmed the opinions raised by the FTC in its enforcement of the FTL. Some change in this situation, however, began to be seen after the amended Code of Administrative Procedure took force on 1 July 2000. Prior to 2000, FTC dispositions were overturned by the Administrative Court in only seven cases, all of them involving unfair competitive practices. Recently, however, even FTC opinions in cases involving restrictive competitive practices have gradually begun to be challenged by the Administrative Court.

This research concludes with recommendations concerning future case handling by the FTC with respect to amounts of administrative fines imposed, reasoning concerning market delineation and market position under Articles 14 and 19 of the FTL, determinations of trade dress under Article 20, and the scope of applicability of the FTL.

Written by:
Chi-Cung Sun, Chia-Lin Yen, I-Hsuan Ho, Ben-Yuan Lin （Legal Department）