A Study on Legal Remedy of Fair Trade Cases
The keynotes of our research are:
Discussing the problems between the legal remedy and the practice of fair trade cases in the Fair Trade Law.
From the viewpoints of the organizational structure and the carrying out duties, we will discuss whether the legal remedies or the practices disobey the characteristics of independence.
Based on the characteristics of the independent on the legal remedy and practice, what is the proceeding we should follow?
What is the proceeding after the Fair Trade Commission (FTC) made the administrative discipline?
The suggestions about solving these problems.
The systems of quasi-judicature in the United States and Japan have some characteristics in the organization, purview, and proceeding of the remedy. There are:
- the neutrality in the politics
- independent power
- quasi-judicial power
- the proceeding of quasi-judicial strictly
- The administrative Appeal is not necessary: in Japan, they exempt the procedure of appeals; in U.S.A., people can make a choice by themselves.
- exempt the first instance proceeding
- take the essential evidence and limit to raise new proof
In theory, the system on a legal remedy must go with the organization, purview, function and proceeding. It's hard to separate the legal remedy from other systems and legislate by themselves.
The organization of the FTC is only independent partly. The Premier of the Executive Yuan gives a mention and the President appoints them as Commissioners of the FTC. The purviews of the FTC have the administrative power and quasi-legislative power, but without quasi-judicial power. The proceeding of administration in Administrative Procedure Act is no differences from the discipline of Laws of Administrative Petition. The Commissioners of the FTC make decisions on cases with profession. Other administrative and judicial departments shouldn't reject the discipline and they should respect the professional decision-making of the FTC. But it is hard to exempt the procedure of appeal by this reason. The point is that the independent of the FTC is abstract and partly, but lacking of quasi-judicial power. Without this, the decision of the FTC cannot be the quasi-judicial decision.
If the FTC can hold the hearings about the decision-making cases, the FTC can exempt the procedure of appeal based on Article 109 of the Administrative Procedure Act. After all the Administrative Procedure Act is the minimum protection in the administrative procedure. If the FTC will revise the law, they should legislate the more safeguard laws than the laws of procedure of FTC. If we can do that, the procedure of appeal can be exempted.
This research suggests that the FTC can modify the whole Fair Trade Law and other related laws step by step based on short-term and long-term targets respectively.
- Short-term targets: Strict the quasi-judicial of the proceeding procedure of the FTC. For example, expanding the range of hearing; the procedure of hearing must be quasi-judicature; the chairman of the hearing should be objectivity, etc. To ensure the conclusion of the facts with profession by the FTC, the court can take the essential evidence and limit to raise new proof.
- Long-term targets: To give the quasi-judicial power to the FTC, including dividing the proceeding and judgment departments; the FTC cannot supervise the proceeding departments; the point is the President appoints the commissioners in profession consideration; the status protection of commissioners should be strengthened.
Updated at：2008-12-19 07:51:32