Case:

The Supreme Administrative Court's decision on a retrial filed by Yu Chiao Education Enterprises Co., Ltd. for a Fair Trade Law violation

Key Words:

regional sales restriction, supplemental teaching material, keeping for others

Reference:

Supreme Administrative Court Decision (94) Tsai-Tzu No. 00012

Industry:

Wholesale of Books and Stationery (4581)

Relevant Laws:

Article 19(vi) and 24 of the Fair Trade Law

Summary:

1. Background: The defendant, Fair Trade Commission (Defendant) initiated an investigation on the textbook market and found that the plaintiff (Plaintiff) employed a marketing mechanism after the implementation of the "9-year integrated curriculum." In such a mechanism, the Plaintiff provided regional sales restrictions to inappropriately restrain its trading counterparts' business operations. The Defendant found this competition restraint in violation of Article 19(vi) of the Fair Trade Law. Additionally, the Plaintiff reserved the regional sales contracts for its trading counterparts. The Defendant found such an act conspicuously unfair and sufficient to affect trading order in violation of Article 24 of the Fair Trade Law. As a result, the Defendant ordered the Plaintiff to immediately cease the aforesaid two unlawful behaviors the day after the disposition letter was served and imposed an administrative fine of NT$ 550,000. The Plaintiff did not agree with the disposition and filed an appeal and administrative litigation which were both overruled. The decision was final after the Plaintiff failed to file a further appeal. Later on, the Plaintiff filed this retrial with this Court by claiming that the aforesaid Decision of this Court was subject to Article 273(1)(i) and (xiii) of the Code of Administrative Procedure.

2. The Plaintiff claimed that previous Decision (92) Su-Tzu No. 4993 was subject to the causes of a retrial set forth in Article 273(1)(i) and (xiii) of the Code of Administrative Procedure by stating that the evidence given by the secret witnesses bookstores A and B was against Kang Hsuan Company instead of the Plaintiff and that the Defendant shall not have employed such evidence to dispose of the Plaintiff. The Plaintiff further claimed that the Decision violated the spirit of the Administrative Court's Decision (75) Pan-Tzu No. 309 by ignoring such a fact and overruling the Plaintiff's appeal and administrative litigation and that the Decision was at fault due to a wrongful application of laws. However, the disputed Disposition Kung Ch'u Tzu No. 092011 issued on January 16, 2003 by the Defendant did not employ the aforesaid evidence as the sole ground for disposition. Neither did the original Decision. Instead, the Decision was made based upon any and all relevant statements and records; the sales contract of Yu Chiao supplemental teaching materials entered by the Plaintiff and its trading counterparts during 2002; the statements given by the Plaintiff's attorney at the preparation procedure on October 1, 2002; and the reasons claimed by both the Plaintiff and Defendant during the previous procedure. This Court took the whole argument and investigation results into account, distinguished the truth from the lies based on theories and experience, and recorded the judgment and reasons in the original Decision. The laws applied in the original Decision shall be consistent with the laws to be applied for that case and have no conflicts with any interpretation or precedent. Since the original Decision contained no cause of retrial as set forth in Article 237(1)(i) of the Code of Administrative Procedure, and that the Plaintiff did not submit any new statement other than those submitted during the previous trial, the Plaintiff's reasons for this retrial shall not be deemed sufficient merely based upon its own dispute against the original legal opinions.

3. The Plaintiff's reasons for the retrial were already submitted in the previous trial. Evidence 4 referred to in the indictment and Evidence 7 referred to in the supplemental letter of reasons were identical with Evidence 12 submitted in the supplemental letter of reasons (3) during the previous administrative procedure on December 27, 2004. The original Decision decided not to take such evidence and explained the same in the column of reasons. This Court was aware of such evidence; therefore, the evidence is not firstly introduced to this retrial. As for the new witnesses brought to this retrial by the Plaintiff, the verbal statements of these new witnesses shall have no effect of evidence. Also, these witnesses were requested to testify after this Court had made a final decision and the related testimonies were not evidences existing during the previous procedure without being considered by the Court. Therefore, these statements shall not fall under the legal descriptions of the requirements for a retrial. Furthermore, the Plaintiff's claims mentioned above were already submitted and considered during the previous trial and were not taken into account by the original Decision. It was groundless for the Plaintiff to employ the same claims for argument.

Appendix:
Yu Chiao Education Enterprises Co., Ltd's Uniform Invoice Number: 12753150

Summarized by Lai, Chia-Ching; Supervised by Lee, Wen-Show