I. Motive
On January 12, 2010, the Legislative Yuan completed the third-reading process for the reform on administrative organizations. In the future, the Executive Yuan will comprise of 14 "ministers," 8 "commissions," 3 "independent agencies," the Central Bank, and the associated National Palace Museum. The current 37 ministers/commissions will be reduced to 27, and the Organic Act for the Executive Yuan will become effective after January 1, 2012. The three "independent agencies" in the Act refer to the Central Election Commission, National Communications Commission (NCC), and the Fair Trade Commission (FTC). According to the definition stipulated "Basic Code Governing Central Administrative Agencies Organizations," an independent agency refers to "a commission-type organization that exercises its powers and functions independently without the supervision of other agencies, and operates autonomously unless otherwise stipulated." However, what do "exercise its powers and functions independently" and "without the supervision of other agencies" actually mean? What is the scope and extent of independence? Under the principle of administrative unity, how shall an independent agency ensure its "independent" power and function?
The administrative appeal system is designed for administrative self-check, which is a kind of ex-post administrative supervision. However, the design of independent agency is to ensure agencies acting independently from the Executive Yuan's command or supervision. If so, can the Executive Yuan supervise ex post on administrative decisions rendered by an independent agency? In other words, if a party disagrees with the decision of an independent agency and filed an administrative appeal, which one has the jurisdiction under current regulatory scheme? Is it the Executive Yuan in Subparagraph 7, Article 4 of the Administrative Appeal Act, or, the independent agency in Paragraph 1, Article 5 of the same Act?
In practice, the NCC,which is also designed an independent agency, once had jurisdiction over administrative appeals against itself. It was discussed and can be a reference to the FTC. Currently, administrative appeals against FTC's decisions are filed to the Executive Yuan pursuant to Subparagraph 7, Article 4 of the Administrative Appeal Act. The current Administrative Appeal Act was amended in 2000. Since it took effect on July 1, 2000 until December 31, 2008, 58 administrative appeals against Fair Trade Act decisions were revoked by the Executive Yuan. After a case-by-case review, we found that sometimes after the original disposition was revoked by the Administrative Appeal Review Committee of the Executive Yuan the FTC persisted based on its professionalism and independence to reinforce the evidence, and made another disposition. However, the second disposition made by the FTC was revoked by the Appeal Review Committee of the Executive Yuan again. This of course affects FTC's independence and professionalism. Since the FTC is reviewing the organic act and Fair Trade Act, we hope to find a solution to the jurisdiction of administrative appeals related to the Fair Trade Act through case studies.
II. Methodology and Analysis
The jurisdiction for administrative appeals related to the Fair Trade Act, in essence, involves the conflict between an independent agency and the function of administrative appeal. The analysis shall balance the theory and the practice of the problem. Consequntly, the focus of the study is the collection and analysis ofadministrative appeals related to Fair Trade Act, and theclarifications of key disputes in the jurisdiction of NCC administrative appeals. The results will then offer some references to the study of the Fair Trade Act regarding whether the existence of an administrative appeal system in FTC is necessary.
The course of our study includes the following: First of all, the study systematically gather and summarize the following data: 1. Legislative intent and legislative history, and 2. Domestic studies and case studies. Secondly, we will study the above data based on the theory of legal interpretation and review relevant regulations and cases, in order to establish the justification for independent agencies and identify potential disputes arising from administrative appeals. Possible solutions will then be proposed as the references of future FTC law amendments.
III. Major Suggestions
To carry out the regulatory intent of an independent agency under the Basic Code Governing Central Administrative Agencies Organizations and maintain its professionalism and credibility, we suggest to introduce a regulation that stipulates that "the Administrative Litigation Act may apply directly to disagreements against the central regulatory authority's decision or disposition" in the amendment to the Fair Trade Act, so that the FTC can exercise its powers and function independently and reduce administrative interference.