Lung Hai Yang Hsing Co. Ltd.

Case:

Lung Hai Yang Hsing Co. Ltd. was tried due to its violation of the Fair Trade Law; it filed an appeal against the Taipei High Administrative Court Judgment (93) Su Tzu No. 865, the Supreme Administrative Court however dismissed the appeal.

Key Words:

alcohol products, age, false and true

Reference:

Taipei Supreme Administrative Court Decision (96)

Industry:

Wholesale of Tobacco Products and Alcoholic Beverages (4546)

Relevant Laws:

Article 21(1) and 41 of the Fair Trade Law

Summary:

1. The Respondent (the Fair Trade Commission) imposed a penalty against the Appellant (Lung Hai Yang Hsing Co. Ltd.) in accordance with Disposition (92) Kung Ch'u Tzu No. 092148 and the fore part of Article 41 of the Fair Trade Law, based on the findings of its investigation initiated upon the complaint filed by the "Scotch Whisky Association." The Appellant imported and sold KINGCAESAR 35 Years Old. However, the alcohol products contained in the Applellant's KINGCAESAR gift set was found by the Respondent in violation of Article 21(1) of the Fair Trade Law by placing false, untrue and misleading representations regarding the age of KINGCAESAR 35 Years Old. The Appellant was dissatisfied with the decision and filed a petition and an administrative action. They were however dismissed by the court. The Applellant therefore filed this administrative action.
2. The certificate of origin of "KINGCAESAR 35 Years Old" submitted by the Appellant only contained the endorsement to prove the origin of the product and the place of production which was Philippines, as well as the name and weight of this product, it however did not show whether the product had undergone any experiments or inspections or not, and could not prove that the age of the alcohol product in case was identical to the time presented by the name of the product. The information recorded in the "CERTIFICATE OF ORGIGIN" was sufficient to simply render such a document as the document of proof of origin. Although the Appellant stated that such an evidentiary document contained the words, 35 YEARS OLD, it was found that the whole text in the document was to indicate the name and weight of the product – the phrase, " ‘said to contain' 490 cases KINGCAESAR 35 YEARS OLD," which was recorded in the document was simply a representation of the name of the product and it was obviously that it was not meant to prove (the age of the product). Therefore, the evidence offered by the Appellant for the purpose of proving that the age of the alcohol product in case was indeed 35 years old could not be adopted and thus the court of the first instance found that the confirmation of fact did not contravene the rules of evidence.
3. Furthermore, the "rules of origin" provided by the Agreement on Rules of Origin of the WTO is followed mainly by Member states of the WTO to acknowledge and to determine the "origin" of a good while they apply their domestic applicable law, regulation and administrative decisions of general effects. The above-mentioned agreement of WTO is merely a regulation which harmonizes each Member's acknowledgement towards the "origin," it however is not connected to the certification of age. Therefore, the argument offered by the Appellant that whether the factories of the WTO member states needed to submit the evidence regarding the age of the product was indeed irrelevant in this case. The court of first instance found that the applicable laws and orders were not in violation of the rule of the primacy of the law.
4. After examining all of the arguments considered by the court of the first instance and the findings of the evidence gathered from the investigation, the original penalty and the decision of the petition were all correct and were upheld. It was also correct to dismiss the pleading of the Appellant. As it was difficult to hold that the Appellant's argument, accusing that the original decision was inconsistent with laws and requested for cancellation of the original decision, has any ground. The appeal shall be denied.

Appendix:
Lung Hai Yang Hsing Co. Ltd.'s Uniform Invoice Number: 97293586

Summarized by Lai, Chia-ching; supervised by Lee, Wen-show