| China is evolving into a market economy. A market economy has honesty as its basis, honesty has creditability as its foundation, and creditability has morality as its source. Therefore, honesty and creditability are bound to be the foci of China in the new century. The case of "XiangWuShi Acoustics" exposed by the Evening Party of March 15 2002 epitomizes the general loss of creditability of the market participants in China.Advertisement and publicity serve two major functions, namely, the general function and the competitive function, with competitive function as the essential one. With the society of acquaintances transforming into one of strangers, advertisement and publicity become major factors lubricating transactions, which sees the credit system indispensable. The Law of Anti-Improper Competition of China delimits false publicity only as misleading false publicity. Upon careful analysis of relevant laws and regulations overseas, the author of this article proposes outright forbiddance of misleading publicity and establishment of the usual notice of a reasonable consumer as the standard of judgment. Under this background, the author analyzes the nature, the composition, the contents, the carriers and the varieties of false publicity. As forbiddance of false publicity promotes an orderly market and protects the legitimate interest of consumers, the Law of Anti-Improper Competition, the Law of Product Quality and the Law on the Protection of Consumer Interest cover the issue of false publicity from different angles.. The author first outlines the application and defects of the above mentioned laws and sketches the liabilities of false publicity under these laws. Then the author dwells upon the laws and regulations on false publicity under the Anglo-American legal system and the mainland legal system, as well as those stipulated by the Paris Convention and the Model Law of Anti-Improper Competition. The author ends the analysis of overseas laws on false publicity by highlighting their major legislative features. In China, the tonics market, the real estate market and the insurance market are typically plagued with a flood of false publicity. After describing the rampancy of false publicity in the three markets, the author explores the causes for such rampancy from the perspectives of legislation, the credit system of market participants and regulation. The author concludes the analysis by summarizing the defects in the regulation of false publicity. In legislation, laws and regulations lack coordination and unity, with inadequacies in administrative sanctions and civil liabilities. In the credit system of market participants, the crediting rating system of advertisement and publicity is virtually non-existent. In regulation, the regulatory system is ill-designed and equipped with inadequate enforcement resources. Based on the above analysis, the author proposes the laws and regulations on false publicity be enhanced from three aspects. Firstly, the credit system of market participants must be established. Different societies require different regulations. China has evolved from the society of acquaintances into the society of strangers, so establishment of credit system for market participants has become the fundamental instrument to regulate advertisement and publicity. To integrate local credit systems into a nationwide credit network, it is necessary to set up an information collection and reporting system, credit investigation system and other supportive systems specifically designed for false publicity. It is also necessary to set a sub-system of publicity under the individual credit system.Secondly, liability system needs to be strengthened so as to increase the cost of false publicity and offer incentives to ferret out false publicity. The article proposes to enhance civil liabilities, improve civil lawsuit system, and to set up an effective representative action system, liability construction system, summary judgment system and proof system. Finally, the regulatory sy... |
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