August 2017
If a company has not continuously refused to rectify after being sanctioned several times, its culpability should not be the most severe. If the maximum statutory fine is directly imposed, this would constitute abuse of discretion (Taiwan)
Young Zheng
The Supreme Administrative Court rendered the 104-Pan-723 Decision of November 27, 2015 (hereinafter, the "Decision"), holding that if a company has not continuously refused to rectify after being sanctioned several times, its culpability should not be the most severe. If the maximum statutory fine is directly imposed, this would constitute abuse of discretion.
According to the Decision, the Appellant (i.e., Taoyuan City Government) inspected Pan Chi Food Enterprise in order to investigate the sales flows of Chuan Tung Hsiang Pig Oils sold by Tai Fu Food Co. Although the Appellee admitted that it used Chuan Tung Hsiang Pig Oils to produce green onion pancakes, it stated that it did not have a list of downstream customers. After complaints were lodged by citizens, the Appellee was found to have set up the Pan Chi Tianjin Green Onion Pancakes website as a distribution channel and seven distribution and service locations were stipulated in such website. The Appellee did not voluntarily provide the information and even shut down the website on September 9, 2014. The Appellant inspected Pan Chi Food Enterprise once again. However, the Appellee still stated that it did not have a list of downstream customers. During the investigation, the Appellant found materials such as a customers' telephone directory, customer delivery sheets, and online orders. As a result, the Appellant believed that the Appellee had failed to provide downstream customer information in time in accordance with Article 41, Paragraph 1, Subparagraph 2 of the Law Governing Food Safety and Sanitation (hereinafter, the "Law") and had shut down the above-mentioned official website. Also, since the Appellee evaded and impeded inspection, the Appellant rendered the original disposition, in which a penalty of NT$3 million was imposed. The Appellee brought administrative action pursuant to applicable procedures. After the original disposition was reversed in the first instance decision, the Appellant filed this appeal.
According to the Decision, the original decision suggested with respect to the incident of Chuan Tung Hsiang Pig Oils that the Appellee was only a buyer, not a vendor that directly manufactured poor quality pig oils. In addition, since the Appellee was penalized for its violation of Article 47, Subparagraph 10 of the Law for the first time, this was not a circumstance where the Appellee had failed to rectify even after being sanctioned several times. Therefore, the culpability of the Appellee's violation of administrative law obligations is not the most severe. Although the penalties imposed in individual cases involving Tai Food Co., Lao Ke Ming Green Onion Pancakes and Mother Liu Rice varied, still they were all related to the incident of Chuan Tung Hsiang Pig Oils and were not the highest statutory penalties. Since the Appellant imposed a penalty of NT$3 million, which was the highest statutory penalty, on the Appellee simply in accordance with Article 47, Subparagraph 10 of the Law, the original trial court held on such ground that the Appellant had abused its discretionary power. The Appellant's appeal was rejected because the original decision was not unlawful.
The Supreme Administrative Court rendered the 104-Pan-723 Decision of November 27, 2015 (hereinafter, the "Decision"), holding that if a company has not continuously refused to rectify after being sanctioned several times, its culpability should not be the most severe. If the maximum statutory fine is directly imposed, this would constitute abuse of discretion.
According to the Decision, the Appellant (i.e., Taoyuan City Government) inspected Pan Chi Food Enterprise in order to investigate the sales flows of Chuan Tung Hsiang Pig Oils sold by Tai Fu Food Co. Although the Appellee admitted that it used Chuan Tung Hsiang Pig Oils to produce green onion pancakes, it stated that it did not have a list of downstream customers. After complaints were lodged by citizens, the Appellee was found to have set up the Pan Chi Tianjin Green Onion Pancakes website as a distribution channel and seven distribution and service locations were stipulated in such website. The Appellee did not voluntarily provide the information and even shut down the website on September 9, 2014. The Appellant inspected Pan Chi Food Enterprise once again. However, the Appellee still stated that it did not have a list of downstream customers. During the investigation, the Appellant found materials such as a customers' telephone directory, customer delivery sheets, and online orders. As a result, the Appellant believed that the Appellee had failed to provide downstream customer information in time in accordance with Article 41, Paragraph 1, Subparagraph 2 of the Law Governing Food Safety and Sanitation (hereinafter, the "Law") and had shut down the above-mentioned official website. Also, since the Appellee evaded and impeded inspection, the Appellant rendered the original disposition, in which a penalty of NT$3 million was imposed. The Appellee brought administrative action pursuant to applicable procedures. After the original disposition was reversed in the first instance decision, the Appellant filed this appeal.
According to the Decision, the original decision suggested with respect to the incident of Chuan Tung Hsiang Pig Oils that the Appellee was only a buyer, not a vendor that directly manufactured poor quality pig oils. In addition, since the Appellee was penalized for its violation of Article 47, Subparagraph 10 of the Law for the first time, this was not a circumstance where the Appellee had failed to rectify even after being sanctioned several times. Therefore, the culpability of the Appellee's violation of administrative law obligations is not the most severe. Although the penalties imposed in individual cases involving Tai Food Co., Lao Ke Ming Green Onion Pancakes and Mother Liu Rice varied, still they were all related to the incident of Chuan Tung Hsiang Pig Oils and were not the highest statutory penalties. Since the Appellant imposed a penalty of NT$3 million, which was the highest statutory penalty, on the Appellee simply in accordance with Article 47, Subparagraph 10 of the Law, the original trial court held on such ground that the Appellant had abused its discretionary power. The Appellant's appeal was rejected because the original decision was not unlawful.
