TAIWAN Law and Practice Contributed by: Jui-Hua Fan, Hsiang-Yang Hsieh, Chia-Hsin Wu, Chi-Ying Lee and Jin-Han Hsieh, Formosa Transnational Attorneys At Law
“Passing-On” Defences The TFTA does not expressly provide for a pass- on defence. Taiwan’s courts have not yet directly addressed whether a pass-on defence will be viable when considering the amount of damages. Interest Pursuant to Article 203, Article 229 Paragraph 2 and Article 233 Paragraph 1 of Taiwan’s Civil Code, if an enterprise is found by courts to be liable for compen - sation of damages to the injured parties, the violat - ing enterprise shall be held by the court to be liable for interest of 5% per annum from a designated date (usually the date that the defendant receives the copy of the plaintiff’s complaint) until the full settlement of the compensation. Under Taiwanese law, when a tortious activity is com - mitted with the involvement of multiple persons, then those persons will be held jointly and severally liable for the tortious activity. While the TFTA allows the TFTC to reduce administra - tive penalties when a member of a concerted action directly reports to the TFTC and helps the TFTC to investigate the concerted action, such leniency does not prevent this reporting member from being sued by any person injured by a concerted action. 9.2 Contribution When multiple parties are held jointly and severally liable for a certain tortious activity, the internal share of the joint and several liability will be determined in accordance with the proportion of their contribution to the tortious activity and to the resulting injuries. 9. Liability and Contribution 9.1 Joint and Several Liability Where parties are held jointly and severally liable for a particular tortious activity and a third party has also contributed to the same tortious conduct and/or the resulting injuries, the parties may bring a claim against the third party seeking a contribution towards its share of the joint and several liability.
In most cases, expert opinions are made in the form of a written statement. Authors of these opinions will be called to testify only if the courts consider it necessary. When testifying in court, an expert witness will be examined and cross-examined by the parties. The expert witness will also have to answer questions raised by the presiding judges. In some cases, parties will appoint their own experts to produce expert opinions without the court’s prior permission. In this situation, the opposing party will usually dispute the qualifications of the expert. It will be subject to the court’s discretion whether to accept the opinions made by an expert appointed by one of the parties. 8. Damages 8.1 Damages: Assessment, Passing On and Interest Assessment of Damages Article 30 of the TFTA stipulates that an enterprise that violates any of the provisions of the TFTA and thereby infringes upon the rights and interests of another shall be liable for damages arising therefrom. The amount of damages shall be assessed on the basis of actual injury suffered by the victim(s), and then, in practice, the court can take the following fac - tors into consideration: • the impact of the violation on the related market and industries; • the degree of severity of the violation; • the interest(s) acquired by the perpetrator from the violation; • the duration of the violation; and • the intent or the degree of negligence of the perpe - trator. Pursuant to Article 31 Paragraph 1 of the TFTA, courts may grant punitive compensation if the victim (plaintiff) has established that the infringer (defendant) commit - ted the violation wilfully. In these circumstances, the court has the discretion to treble the amount of the victim’s established loss.
195 A NTITRUST LI T IGATI O N 2026
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