Research On The Legal Issues Of False Advertisements In China

Recently, the increasing amount of false advertisements leads to detriment to a large number of consumers, which provokes the law professionals' focus and thinking. Why do false advertisements repeatedly arise despite prohibition? To answer this question, first of all, we should examine whether there are any holes or problems in our legislation. This thesis aims to discuss the issues regarding the definition of false advertisement, the present legislation and its problems of the liable subjects, meanwhile, it seeks to put forward some suggestions on improving the legislation on the liable subjects; finally, in order to further perfect our governmental supervision system, the American governmental supervision system is referred to.The first chapter concerns the issue of the definition of false advertisements, including the basic elements for false advertisements, the defining principles and categories. First of all, the basic elements for false advertisements include subjective aspect and objective aspect. The former one includes the actor's intention or negligence, and the latter means that the false advertising leads to the fact of detriment or the possibility of detriment, which is to be judged by the reaction of those who are advertised to, rather than by the actor's subjective intention. The three defining principles are quoted and suggested being applied to China by many domestic scholars------the principle of average consumers' ordinary attention, the principle of observation at different places and time, the principle of comparing the major parts. This thesis advocates that the simple judging principle is that a false advertisement is defined if an average consumer's rough impression from an advertisement is misled. However, this thesis analyses that those principles do not conform to the present situation in China, thus not proper to be adopted without change. In addition, false advertisements are categorized into deceiving advertisements and misleading advertisements, besides, a confusing concept "commercial bragging" also needs to be clarified.The second chapter discusses the present legislation, the existing problems and suggested improvement on the liable subjects for false advertisements. The major task is to make sure that the supervisors and participants shall not escape liability. The subjects for false advertisement include the advertisers, advertising agents and advertisement publishers. The supervisors and participants include the social organizations, other organizations, functionary of advertisement examination organ and the celebrity who present false recommendation. The prominent problem among them is the functionary of advertising supervision organ neglects their duty. A large number of deceiving or false advertisements managed to pass the examination, which exposes the severe problem of omission or neglecting their duty. How can we guarantee that the functionary actively and seriously perform their duty? This thesis suggests that the examination organ's acting being made transparent, namely, the name of the functionary and the examination organ shall be published together with the advertisement. Once the advertisement is declared false, the liability of the functionary can be tracked down. It might be a powerful weapon against administrative omission to encourage the public to actively use their right to sue the administrators. In the field of false advertisement, our law shall allow and depends on the public' supervising power, and further clarify the consumers' administrative suing right. In case that the false advertisement examined and approved by the examination organ damages the costumers' legal right, the injured consumers shall be entitled to claim damages from the examination organ.The problem of celebrity false advertisements has been ignored by our law. Since the celebrity's false recommendation in advertisement is not regulated in law, the celebrity's proceedings from advertisement is not proportional to its liability. In practice, celebrity has never been punished for their false recommendation. It doesn't work to advocate, and the explicit legislation is a must. Since the influence of celebrity false advertisements is prevailing, the celebrities shall be liable for their untrue statement.The third chapter probes into the supervising system on false advertisements. Compared with our supervising system, we find that American governmental supervising system is worth referring to. For example, a specific administrative organ on advertisements shall be established, whose staff shall be professional. As regard to the procedural laws we can learn from American group procedural law, simplify the proceeding, and protect the consumers' rights with maximum efficiency.