Study On The Theory And Judicial Practice Of False Propaganda

With the development and perfection of our socialist market economy, the competition mechanism as the lifeline of market economy is becoming more and more mature. In order to attract the consumers, fight for trade opportunities and occupy more market shares during competing with each other in the market, the businessmen of the market had taken various tactics and means for pervading multifarious business propaganda into all fields of the social life. To some extant, the competition of the market has already become the competition of propaganda. Unfortunately, some businessmen play tricks in commodity propaganda, which goes against the principle of good faith, so as to mislead consumers to make the wrong purchasing decisions. Their behavior causes their competitors to lose consumers even though they offer high quality services and products, and does harm to the establishment of a fair and orderly market competition environment.Recently, more cases concerning false propaganda come into the court. In order to effectively regulate the act of false propaganda and establish a well ordered market competition system, on the basis of theory analysis, legal regulations and judicial practice of false propaganda in China and some other countries, the thesis begins with the concept of false propaganda and then offers a further study on the act of false propaganda and finally performs analysis and assessment on the existing problems in the judicial practices, so as to provide references and helps for the judicial practices henceforth. The thesis construction is as follows:The first part deals with the basic theory of false propaganda, wherein the different definitions and concepts of false propaganda from the scholars inside and outside our country have been introduced and a new concept of false propaganda of the author has been put forward based on the overall analysis of the ways of propaganda, the connotation of "false" and the legal nature of false propaganda,wherein, the author pays more attention to the exposition of judging standard of "misleading" concerning the concept of false propaganda.The second part is the analysis of all manifestations of false propaganda. After introducing the manifestations of false propaganda during narrating the characteristics of false propaganda, the thesis also describes the economic, social, cultural and legal reasons why false propaganda spreads.The third part is the legislation and judicial practice of the U.S.A and Germany as well as the experiences we shall get from these two countries. The regulations concerning false propaganda in the U.S.A and Germany have been introduced in this part, and countermeasures in connection with the reasons of false propaganda have been put forward on the basis of experiences from the countries mentioned above. In the author's point of view, only on the condition of building the moral culture of good faith can we perfect our legal and supervisory system and effectively restrain the act of false propaganda. So far as legislation is concerned, the author suggests that responsibilities taken by the participants involved in false propaganda such as celebrities, stars etc. should be clearly stated in civil and criminal laws, and that the conditions to take the responsibilities above should well stipulated according to the related regulations in Germany. The author also suggests that a provisional prohibition order before lawsuit as provisional remedy measures may be augmented to stop the act of false propaganda in time.The fourth part concerns the questions appearing in judicial practice and some new opinions to solve these questions, with the help of which the author hopes to give some enlightening guidance to the judges. It mainly deals with the understanding and application of Article 5(4), Article 9 and Article 14 of Law of the People's Republic of China for Countering Unfair Competition, unspecified subjects' standing to sue, judgment of tort of comparative advertisements, analysis of obstacles in deciding compensation amounts and their countermeasures. The author suggests that the executors of comparative advertisements bear the burden of proof in connection with the sources of information about comparative object as well as its objectivity and totality.In the last part, the author summarizes all the new viewpoints narrated in the parts above.