On The Civil Liability For False Endorsements And Testimonials In Advertisement

Endorsements and testimonials in advertising, a product of the commodity economy, are conducive to social and economic development. But in recent years false endorsements and testimonials in advertisement that have occurred continuously not only damage the interests of consumers and undermine the cornerstone of the integrity of the whole community, but also affect the interests of the presenters. Academia has more discussions in every respect about how to foster strengths and circumvent weaknesses, inhibit negative effects and promote positive role. This thesis attempts to make an approach to tort liability system of endorsements and testimonials in advertisement of our country.The thesis, divided into 2 parts, probes into civil liability system for false endorsements and testimonials in advertisement.The first part analyzes the actual state of the civil liability for false endorsements and testimonials in advertisement of our country. Firstly, the existing provisions about civil liability system for false endorsements and testimonials in advertisement of our country are relatively simple. Subject of liability, scope of liability, imputation principle and form of liability need to be further discussed. Constitutive requirements are ambiguous. Secondly, their different opinions on positive and negative theory for the civil liability for false endorsements and testimonials in advertisement are analyzed. It is found that the opinions on negative theory do not hold. Neither do the theory for fault liability of contract conclusion and the theory for social responsibility in positive theory. False endorsements and testimonials in advertisement constitute endorsements and testimonials tort. The tortfeasor should bear tort liability.The second part is reflection of the civil liability for false endorsements and testimonials in advertisement of our country. Firstly, Advertising Law should confirm principal position of individual presenter in false endorsements and testimonials in advertisement. It's utility range should appropriately extent to pharmaceutical advertising, medical advertising, cosmetics advertising, investment advertising in employment, and advertising in education service, in addition to food advertising. Secondly, when we confirm the liability of the presenter of advertisements, we both permit recommended advertisement behavior and reduce the burden of testification of the victim. Thus, that is applicable to attribution principle of liability of presumptive fault. Thirdly, attribution principle of liability of presumptive fault is a special form of attribution principle of liability of fault. Academia holds two types of viewpoints such as four elements theory and three elements theory on tort essentials applicable to attribution principle of liability of fault. The author thinks that fault means illegality. Illegality results from fault. Tort is illegal. Thus, the offender must bear civil liability. He advocates adoption of three elements theory. That is, when fault, damage fact and the relationship of cause and effect are available, tort is constituted. Therefore, the offender should bear tort liability. Meanwhile, when the victim's fault, the third party's fault and force majeure are available, the presenter should reduce or exempt the liability. Fourthly, when we confirm the form of tort liability for endorsements and testimonials in advertisement, we should consider fault form of the presenter. The presenter and the advertiser bear joint liability in terms of intentional form. The advertiser bears direct liability and the presenter bears supplementary liability in terms of gross negligence form. The employer bears the liability in terms of general negligence form.