The Study On The Application Of The Principle Of Proportionality In Administrative Punishment Of The Advertising Law

In order to standardize the advertising campaign,China promulgated the first "Advertising Law of the People's Republic of China"(hereinafter referred to as the "Advertising Law")on October 27,1994.The law was first amended on April 24,2015 and came into force on September 1 of the same year.The implementation of the new law has been effective for more than two years,but the disputes that have arisen are also not uncommon.Among them,one of the major controversies is whether or not the administrative punishment for illegal advertising is legitimate.Specifically,it is whether or not the discretion of administrative punishment in accordance with the relevant legal liability provisions of the new Advertising Law is appropriately exercised by the law enforcement agencies in charge of advertising supervision that has become an essential part of administrative supervision and judicial review.On the judicial review of such cases,I believe that the principle of censorship on the basis of which the court decides whether the administrative organ's decision of an administrative penalty on illegal advertising is legal or not is the principle of proportionality.The principle of proportionality,as a basic principle of administrative law,has a relatively stable meaning.It's generally said that the principle of proportionality includes three sub-principles,namely,the principle of appropriateness,the principle of necessity and the principle of special proportionality.The principle of appropriateness,that is,the principle of purposiveness,means that the measures taken by the executive authorities in exercising discretion must conform to legal purposes.The principle of necessity refers to the way that an administrative organ should choose to minimize the damage to the rights and interests of the parties when it can reach an administrative goal in various ways.The principle of narrow proportionality means that the measure that the administrative power takes must be proportionate to the result it seeks.The principle of proportionality plays a positive role in regulating administrative law enforcement,ensuring just law enforcement,pursuing substantive justice and realizing substantively administrative rule of law,and should be applied to specific administrative law enforcement activities.With regard to the application of the principle of proportionality in the administrative punishment of advertisement law,this article analyzes 63 adjudication documents,the disputes of which include the common one that whether the administrative penalty of advertisement law is appropriate or not.From the judicial review point of view,I try to analyze the types of illegal advertisement,the focus of controversy,the essence of the judgment and so on in these cases,and study the principles,standards and contents of the judicial review.According to my analysis,fake advertisements and the advertisements with absolute terms are the two types of illegal advertisements that are more controversial.The court judges the validity of the relevant administrative punishment decisions on the principle of proportionality.Taking these two typical cases as the examples,I analyze the specific application of the principle of proportionality in the administrative punishment involved in the case according to the censorship ideas and contents of the judicial review.The administrative penalties for false advertisements should be premised on the fact that the advertisements in question are false advertisements.When making an administrative punishment for a fake advertisement according to Article 55 of the new "Advertising Law",the administrative organ should carefully consider whether the administrative counterpart can meet the conditions such as "the advertising cost can not be calculated" or "the advertising cost is obviously low" stipulated in the article,combine with the way and quantity of false advertisements released,the scope of the audience,the harmful consequences,and other factors,and take into account whether there is light or mitigated circumstances,to exercise the appropriate discretion and make the punishment in line with the principle of proportionality.The same applies to the punishment of the advertisements with absolute terms.Firstly,it should be accurately determined that whether the slogan involved in the advertisement belongs to the absolute terms prohibited by Article 9(3)of the "Advertising Law".Then the corresponding administrative penalty is made against the perpetrator according to Article 57 of the "Advertisement Law".Besides,what should not be neglected is the provisions of Article 27 of the Law on Administrative Penalty on lessening,mitigating or not imposing administrative penalties,so as to ensure that the administrative penalty is legitimate and reasonable.Through the analysis of the above typical cases,this article tries to conclude the applicable rules of the principle of proportionality in the administrative punishment of the Advertising Law.First of all,administrative organs should accurately define the types of illegal advertisements,and then determine the applicable legal liability provisions.Secondly,apart from the corresponding administrative punishment provisions of "Advertising Law",the executive authorities should exhaust the administrative law department to find out the administrative punishment provisions related to the illegal advertising activities involved in the cases,so as to ensure the comprehensiveness of the law application and reduce the possibility of making improper decisions of the administrative punishment.Finally,in the application of specific provisions of administrative punishment,the decision-making of the administrative punishment should be based on the ascertained facts and evidence of the case,strictly abide by legal procedures,and decide whether the case is in line with the key elements of the law with full argument,to ensure the legitimacy and rationality of the administrative punishment.Finally,in view of the status quo of the application of the principle of proportionality in current law enforcement of advertising supervision,this article proposes the following two suggestions through analysis: First,formulate the standards for administrative punishment discretion in combination with the principle of proportionality.The standards of administrative discretion plays an important role in regulating administrative discretion and promoting administration according to law.The introduction of the principle of proportionality when formulating the standards for administrative punishment discretion is conducive to the reasonable division of the punishment range and the reasonableness of the standards for administrative discretion.However,it should be noted that the standards for administrative punishment discretion should not completely include the scope of the existing provisions of administrative punishment,which means that some room for administrative discretion should be left.Second,the demonstration of the principle of proportionality should be reinforced in the administrative punishment decision of Advertising Law.The application of the principle of proportionality in the administrative punishment of Advertisement Law chiefly manifests itself as the exercise of the discretion of administrative punishment.The administrative organs should give reasons for the exercise of administrative discretion.This is not only an explicit requirement of administrative enforcement according to law but also a kind of inherent constraint on the law enforcement procedures of the executive authorities,which helps the executive authorities to exercise their discretion properly.Therefore,the procedure of justification should be equipped with a fair amount of reasoning and persuasion to actually enhance the acceptability of the administrative punishment.