Judgment by the Taipei Administrative High Court against Hsian-An Enterprise Co., Ltd. for violation of the Fair Trade Law by selling gas equipment under false excuses of gas safety inspection and gas disaster prevention, which is a deceptive conduct sufficient to affect trading order
Taiwan
Case:
Judgment by the Taipei Administrative High Court against Hsian-An Enterprise Co., Ltd. for violation of the Fair Trade Law by selling gas equipment under false excuses of gas safety inspection and gas disaster prevention, which is a deceptive conduct sufficient to affect trading order
KeyWords:
gas inspection, selling gas equipment
Reference:
Taipei High Administrative Court (91) Su Tzu No. 2454
Industry:
Wholesale Trade of Other Household Equipment and Supplies (4449)
Relevant Law:
Articles 24 of the Fair Trade Law
Summary:
1. A complaint had been made against the plaintiff, Hsian-An Enterprise Co., Ltd. According to the complaint, the plaintiff’s staff, in order to sell their merchandise in the Hisinchu county area, informed the complainants of a new regulation requiring all residents to install gas explosion-proof devices. Additionally, under the false excuse of gas inspection, the plaintiff’s staff entered the complainants’ residence to install gas equipment, claiming the installation was ordered by the government and the merchandise must not be returned. The defendant, the Fair Trade Commission (FTC), had previously rendered a finding that the plaintiff’s act of selling gas equipment under false excuses of gas safety inspection and gas disaster prevention were sufficiently deceptive to affect trading order. Therefore, in violation of Article 24 of the Fair Trade Law, the FTC had given disposition accordingly. The plaintiff objected to the disposition, and filed a subsequent administrative appeal. The Executive Yuan dismissed the administrative appeal, and the plaintiff then filed the administrative litigation summarized here.
2. Article 24 of the Fair Trade Law provides: “In addition to what is provided for in this Law, no enterprise shall otherwise have any deceptive or obviously unfair conduct that is able to affect trading order.” Further, the forepart of Article 41 of the Fair Trade Law provides: “the Fair Trade Commission may order any enterprise that violates any of the provisions of this Law to cease therefrom, rectify its conduct or take necessary corrective action within the time prescribed in the order; in addition, it may assess upon such enterprise an administrative penalty of not less than fifty thousand nor more than twenty-five million New Taiwan Dollars.” “Deceptive” as used in Article 24 refers to acts of engaging in trade with trading counterparts or depriving competitors of trading opportunities by misleading them through active deception or through passive concealment of material trading information. Whether an act is “deceptive conduct” shall be determined by whether objectively there is a constitution of deception (not necessarily conditioned by practical trading conduct) with a judging standard of the general public.
During the course of the defendant’s investigation, the plaintiff’s representative stated as follows: “the sales persons of our company will personally deliver a notice of our company to residents’ mailboxes in advance (for all areas with the gas users). Within three days after the delivery of the notice, our sales persons will ring the doorbell of the users’ residence to express the intention of promoting gas safety knowledge and assisting with gas inspection to the residents (both are free service). Then, our sales persons will ask the residents to show the kitchen and start the inspection of the gas stove and pipes to see if there is a leak or oxidation. If it is natural gas users, our company will use gas-leaking detectors to check for leaks, while using the automatic leak-detecting device on our automatic safety timer controller for bottled gas users.” The record of this statement is attached to the document of original disposition as proof. It is clear to see that the defendant’s previous conclusion is correct. In order to sell their merchandise, the plaintiff deliberately concealed the material fact of not being a gas piping company from the residents and tried to mislead them to believe it was a safety inspection conducted by a gas piping company. The said actions of the plaintiff are undoubtedly misleading methods used to engage in trade with trading counterparts and deprive competitors of trading opportunities. The plaintiff’s claim shall not be considered. The plaintiff’s appeal requesting to reverse the administrative appeal decision and the original disposition is in lack of legal grounds and shall be dismissed.
Summarized by Lai, Chia-Ching;
Supervised by Wang, Rong-Ging
Appendix:
Hsian-An Enterprise Co., Ltd.’s Uniform Invoice Number: 97056654