2004-4-20

(A) Why popular?

the prevalence of false advertising is currently the concern of social phenomenon, which itself can be a reflection of some deep current of social things, such as law enforcement is not strong, the integrity of a serious lack of resources, great benefits misconduct under such temptations. Many of China's current social problems are the reasons can be found here, the prevalence of false advertising is no exception.

1. lure of huge profits

general, the way of gaining access to trading opportunities are affordable, good quality of their products, companies can get low prices relative to more trading partners. However, the conditions for enterprises cheap and easy, a lot of unfair competition will be more common. False advertising enables advertisers to a very low price to get more trading opportunities, in order to gain huge profits. In modern society, at least two factors that greatly enhanced the yield of false advertising. First, television, Internet and other new media adoption. Compared with the traditional forms of advertising, these new media a strong ability to communicate the breadth and depth of the false information on the availability of greatly increased, more people will see this information. In the case of other conditions remain unchanged, it also enhances the possibility of more victims. Particularly difficult to identify false or misleading advertising under the circumstances. There is also a factor to consider, that the modern concept of advertising technology and has the capacity to image processing, star in the ads, etc. has been very attractive, attractive advertising through the abnormal spread of modern media, but also to enable more people may suffer. Second, the emergence of high-tech products or services and universal. In modern society, high-tech products and services have been popular, the product has become extremely complex structure and function, the product features, quality, production process and so some of the terminology and concepts emerging, such as antioxidants, That is, in modern society, many of the quality of products or services can not be employing the common sense to judge the need for specialized knowledge. Why do people believe false advertising? The key problem is lack of valid information. And many of the modern society do not have professional knowledge of the people, faced with a complex product or service, their products often can not determine the quality and functionality, and in the absence of other information sources circumstances, victims of false advertising by the very nature .

the two factors contributed to the victims of not only the scope of the expansion in the region, while increasing the density of the victims; by so thus obtain a very high rate of return. It is this very high

2. honest the lack of resources

integrity of lack of resources is currently a social phenomenon, can be said that the production of many social problems are related to it directly or indirectly associated. Other causes of social phenomena and the difference is: the prevalence of false advertising in this issue, the integrity of enterprise performance was a serious shortage of resources. If starting from July 2005, Henan, Jiangxi, Liaoning, some of the hospital, even called for a separation of the vagus nerve surgery has not been sufficient scientific proof of surgery to advertise, in the overwhelming temptation of false advertising under many of rheumatoid and ankylosing spondylitis patients onto the operating table full of hope. Brought to the hospital surgical 7000-8000 per person per month fee income surgery, to patients is a disease caused by the aggravation, and even paralysis. Chongqing Industrial and Commercial Bureau, a survey shows record: When the investigators asked the hospitals involved, why there is no organization that appears in the advertisement, the hospital's answer is very simple, ① This is a typical strong over the weak deprivation, loss of social and moral standards of the bottom line performance. Here we can not in-depth study of social and moral standards of the reasons for the loss of the bottom line, there is a very complex factors, but we can fully aware that such a serious lack of credibility of resources to advertisers in the publication of false advertising when you ignore public interests, social interests, national interests, for their own selfish interests and unscrupulous criminal.

serious shortage of resources in the integrity of the case, the law prohibits false advertising aspects of the role and can not be too great. Concern we have is: If society can not be a substantial increase in credit resources, the legal prohibition against false advertising there will be some obstacles to the implementation of the law will cost at least greatly increased. On the other hand, the prevalence of false advertising is a serious shortage of resources for social integrity of a performance, if the use of coercive power reduced the number of false advertising, which, though the victory of the performance of law enforcement for the advertising, but companies will harm the interests of consumers through other Guang Gao way or the performance of ads appear on the consumer, the protection of their interests and will not be much enhanced, but harm the interests of business consumers in different ways. ② So of course we need to emphasize the role of law, but in the long run, we should focus on the construction of social credit resources.

3. the Government to combat ineffective

because false advertising has a very high The problem is that the government efforts to crack down on false advertising is far from enough. Such as ; for the responsible advertising operators and advertisement publishers, confiscate the advertising expenses, advertising costs and impose a fine of more than five times. However, we observed that the reality is: very little advertising supervision and administration of advertisers to fine more than doubled; almost no false advertising advertisers ordered in the corresponding range of public corrections eliminate the impact of false advertising because such a serious situation Next, we have not seen in any media to correct the false advertising related to the case. As for the punishment of the media, is even more rare. Although the That what is Review of advertising media in the presence of false bear much responsibility for the content? This of course need to study. The question now is, in most of the false advertising, the media was responsible, but did not receive due punishment.

(b) why the combat ineffective?

prevalence of false advertising is one of the important reasons is that the Government of its combat ineffective. Our question is: will be a mere formality? This requires us to focus on. Through observation, investigation and analysis, I believe, from the system, law enforcement resources, the severity of false advertising and media awareness and law enforcement agencies investigated the relationship between the levels, you can find the deeper reason.

1. From the institutional level

in China at present, regulation of advertising to the general norms are, The problem is that different legal systems in general, developed by the State Council. Later, The question is: SAIC to develop the Law In the investigation of the illegal ad, the This can be from SAIC in September 28, 2005 published in the form to the Secretary that As for the

First, set the administrative responsibility for false advertising, the The corresponding correction to eliminate within the public impact thirty thousand yuan

second, The Is worth noting that: And scrutinize the content of Article 12, where the advertising agents and publishers may also include advertising. 2. It is responsible for the advertising agents and the premise is set to 3. penalty

Third, some of the illegal advertisements of legal responsibility, yuan fine

Fourth, the For advertisers to be criticized, at five thousand yuan shall be imposed.

Clearly, the legal responsibility on illegal advertising set, the As to why SAIC through the the main responsibilities of the administrative responsibilities, and therefore the practice of false advertising law, offenders in fact the general liability is necessary to reduce or mitigate. Second, law enforcement agencies of the ads is not enough emphasis on advertising law.

2. Degree of harm from the understanding of false advertising to see

at the legislative level, at least in the This degree of certainty depends on knowledge of the dangers of false advertising. However, the false advertising law enforcement situation, although the false advertising would have huge negative impact on society, but the negative impact of the law enforcement level is not fully understood and measurable. In general, the number of victims of certain offenses and victims of such acts is to assess the degree of seriousness of the important indicators, but in practice there are at least four factors that impact on the awareness of the serious consequences of false advertising:

First, the vast majority of complaints of false advertising or harm the interests of victims of other forms of expansion often advocated. More often the victims of false advertising to other forms or reasons, such as poor product quality, measurement inaccuracies, such as ######## brand-name products, complaints or claims benefit to the authorities. In 2005, consumer advertising problem because of consumer associations to complaints from around the country in the annual proportion of the total complaints is only 1.72%, the basic situation a few years ago, too, which China is very serious false advertising not match the situation. One side is a high offense rates, complaint rates low side, this is why? Reasonable explanation is that victims of false advertising because the consumer issues more to the quality of complaints to the Consumer Association. In this case, if we therefore consider problems that arise because of advertising complaints is negligible, it would be wrong, such thoughts would lead to underestimation of the seriousness of false advertising and the resulting harm.

Second, because the lack of information, more victims of false advertising are not aware of their own circumstances of fraud, and therefore there is no complaint or claim the rights situation.

Third, false advertising in the more immediate circumstances are not direct victims, because false advertising, just a false information. And the vast majority of violations against the results at the same time its differences in the results of false advertising against the generation of behavior and often have time interval,Nike shox shoes, but this does not mean no harm.

Fourth, false advertising does not necessarily have real victims, whether there are real victims of false advertising by the public recognition ability. If the advertisers in the design is not wise when the false advertising, or the general public has very strong ability to identify the victims of false advertising will be rare, but this does not mean no harm. But also because of the harm of false advertising and the market information, the media's credibility and so on.

in law enforcement practice, on the dangers of false advertising, lack of understanding of direct impact on law enforcement efforts, which currently exists in our society helpless improper enforcement of a trend toward. As social change and other complex factors, in recent years and entered the high incidence of illegal activities, more public power agencies face a high incidence of violations, the investigation does not mean force can be, so often based on violations harm to configure the size of law enforcement resources. In general, harmful levels of identified need for objective criteria, but when in practice they are often more subjective criteria, there was even the wrong understanding of the situation. Extent based on subjective judgments of the dangers of the practice of law enforcement resources are often arranged mistakes, some of the more harmful acts in fact investigated only a few law enforcement resources are configured. In fact look at objective criteria alone, there may be problems, see the current situation, the dangers of public power agencies to identify more biased in favor of current or recent hazards, and neglects the long-term harm; more biased in favor of the dominant hazard, and Potential Danger of contempt. This is in food safety, environmental protection, health and epidemic prevention, etc. particularly conspicuous. The tendency of law enforcement on illegal advertising and harm the combined effect of underestimation of the extent, but also contributed to the lower of illegal advertising law enforcement.

3. From the perspective of law enforcement resources

enforcement of false advertising, a serious shortage of resources, mainly for lack of law enforcement personnel, and lack of staff mainly for lack of quantity and quality of the deficiencies. Lack of quantity relative to a region in advertising volume and the incidence of illegal advertisements in terms of the total lack of law enforcement officers; qualitative deficiency is the shortage of certain professionals. Because the ads are more cases of law enforcement for law enforcement personnel, understand the law merely a necessary, if not professional and technical knowledge, as there may be obstacles to law enforcement. In practice, the face of such widespread illegal advertising, and more cases are: advertising law enforcement agencies struggling to cope, more land can only do some regular, routine work, such as reviewing or approving specific ads; or cases assigned to the higher authorities, such cases have a significant impact to be investigated, while the initiative is often beyond their grasp. This lack of enforcement makes a lot of false advertising under the control of leakage in the public rights,

4. From the relationship between law enforcement agencies and the media to see

many cases, law enforcement agencies, why would the media violations spared? This requires us to examine law enforcement agencies, in reality, and media relations. Law enforcement agencies in terms of the general object relative to the law enforcement is a strong body, so if the protection of the interests of law enforcement to provide for the object. However, the false advertising law enforcement, law enforcement agencies and the media as a law enforcement relationship between the object is not so simple, of course, is a strong body of law enforcement agencies, but in some cases, the media is a strong body. This is because the media is a very special organization, and general corporate different products, though it is visible text, images, audio, etc., but the thought can be transmitted, and guide public opinion and affect the people and government, small, you can publish message. ① This function is the media more law enforcement agencies in law enforcement will be considered, mainly due to good behavior is worried about media reports tend to regard other institutions; also appeared in the media of law enforcement agencies fear the extreme case, the reason often worry about the enforcement of certain improper behavior by the media over-reports. Of course, after all, law enforcement agencies have enforcement powers under the law, so law enforcement agencies in law enforcement considerations (in some cases, fear) the object is often only the region where the mainstream media or major media. Why advertising regulation department of the areas where the mainstream media, especially the most influential media advertising is always the penalties for less? This should be one of the main. Of course, we only observed this phenomenon, as the phenomenon of the prevalence in practice remains to be further investigated.

Third, false advertising, the basic problem of governance

deeper in the background, just the prevalence of false advertising representations. Therefore, the governance of false advertising should be treating the symptoms, you should use a variety of paths, based on a variety of perspectives, multi-pronged approach. Several different aspects of the problem is false advertising the process of governance can not be ignored.

(a) of the various dimensions of the advertising interests of offenders subject to damage, appropriate strength. This need to consider three points, first, the responsibility for setting and punishment practices, not only to make offenders suffer immediate interests, but also to long-term interests are jeopardized; not only the offender to make the material interests are jeopardized, but also to non-material interests such as reputation, market reputation and other damage. Second, the intensity of the punishment of offenders should be appropriate, not too light. Third, we need to eliminate the illegal bear false advertising because the market caused by false information generated by the responsibility, in particular, should make him bear the cost of resources to eliminate false information.

(b) all bear the main responsibility to make all the responsibility. This need to consider four points, first, the dissemination of false advertising is ultimately dependent on advertisers,Leather bags, advertising operators and advertisement publishers, such as more body, so the responsibility for design, these bear the main responsibility is necessary. Although the theory of advertising, publishing, etc. to be a part of any control, false advertising can be suppressed, but the reality of the situation indicates that a link to lost circulation control is not possible, through multi-link control settings a more rigorous network is necessary. Second, responsibility for setting, in addition to the enterprise as the offender the punishment of the persons directly responsible corporate behavior to set an appropriate form of liability is necessary. Third, on the other end in the dissemination of false advertising to make Fourth, the downstream behavior of false advertising, such as advertising, false advertising and thus leads the main reason for trading opportunities and behavior, set more stringent responsibilities. This is in the Therefore, how to improve the environment for the exercise of this right to consider, from the false advertising of governance, these are also relevant, although not directly related.

(c) the legal path and non-legal path, the traditional path and the combination of non-traditional path. This need to consider two points, first, the punishment of offenders, we should pay attention to the construction of credit system to play the reputation of constraint functions. In the development of more mature market system, the reputation of the legal constraints are often super-function. Bernstein pointed out in the study in 1992,Wholesale shoes, by the reputation of different constraints, customary business practice and arbitration procedures, (United States) to form a complete set of diamond industry rules and institutions, market participants believe that they are superior to the legal system ... ... set up to promote the reputation of the market information at low cost and faster speed of content distribution in the industry, makes it possible to use the reputation of constraints to the formation of industry standards, and its role is for non-compliance with the contract and the conduct of private accreditation system resistance scared, and it is completely outside the legal system to implement the resolution of private accreditation system. ① Second, to deal with false information with real information, so that false information proved unfounded. Production and dissemination of truthful information is not just a legal issue. How to use legal and non-legal information is the true path to full production and transmission is a need to study the issue.

(d) the constraints and incentives for law enforcement. Prevalence of false advertising has been able to present an important reason, is inadequate law enforcement functions, law enforcement agencies to give law enforcement and the case is also a lot. Strict law enforcement is the responsibility of law enforcement agencies, it is clear that law enforcement is his duty to give up. Therefore, law enforcement agencies how to strengthen the enforcement of constraints is an important issue. Of course, false advertising law, the only constraints are of the law enforcement agencies is not enough, as a supplementary means of appropriate incentives should also be considered, through incentives to law enforcement agencies and law enforcement officers have more law enforcement power. Of course, in the course of the specific operation will be some difficult problem. In general, the different incentives in the form of incentives will produce different intensity, so the incentives in the form of choice, physical, spiritual, direct, indirect, and so must be considered. In addition, the incentive to obtain better results, the main interests of law enforcement performance associated with law enforcement is necessary. But the degree of certainty associated with the performance of law enforcement is often difficult to determine. Because law enforcement through incentives will produce power, but if this law enforcement power is too strong, not necessarily the best, in practice, may also have considerable disadvantages. The performance of law enforcement may ultimately determine the number of cases will be investigated and the amount of such fines as the standard to judge their own when this will be no major problems, but may therefore affect the behavior of law enforcement so that law enforcement agencies or law enforcement officers Thus the formation of a law enforcement preferences. In practice, this problem need to focus on resolving.

Fourth, some of the current control measures in the evaluation of false advertising

SAIC highest as an advertising law enforcement agencies for management of false advertising, alone or in combination after another in recent years, the introduction of some provisions of other agencies, publishing some notice. Released in early 2005 as the February 2006 SAIC issued a Some of these measures are more feasible, but some measures are problematic. Because there is a certain universality of these issues, this article of the

(a) of the illegal information publicity system

the recognition ability of false and illegal medical advertisements.

information known to the public issues should be said to be a blow to the offense is a good idea, because the information publicity to But we need to distinguish between open information and information openness. These are two different dimensions. Information publicity is in some way (such as the Government's announcement) the information public, but the information does not mean that public dissemination of information, but does not mean the public understanding of the information. It is clear that the Government's information bulletin and the public understanding of information between a long distance, in reality, the public more notice and open government through information do not understand, ability of false and illegal medical advertisements, Therefore, false advertising, as the highest law enforcement agency, the concerns of not only remain in the open information level, should be concerned about how the publicity of information transfer and dissemination of the full problem. Of course, this is a systematic project and is not dependent on the strength of law enforcement agencies alone can be completed. Solution to this problem can be established by means of being the power of open government information system, specifically to consider the following ways: a fixed place or media publicity information; targeted dissemination of specific information; network of information dissemination of publicity; online subscription publicity information; free distribution of written materials; in government bodies set up a special reading room, in public libraries or other places set up a special reading room; use of community and grass-roots units in the dissemination of information resources.

(b) to stop or limit the eligibility Advertising

the ordered to suspend business for rectification.

eligible to stop or limit advertising media is the most severe punishment illegal, under penalty of media will cut off sources of revenue and therefore can not survive. From the theoretical analysis, the media will take this into account and adjust their behavior. But in practice, the problem is not so simple. We should recognize not only the liability is too light is not conducive to crack down on illegal activities, excessive legal liability for violations of the combat and prevention is not able to work unless the. Impact of excessive liability laws are not a lot of good execution path. We analyzed here only heavy penalties on the media the possible negative impact of its path. China's media is generally not closed down simply because of economic difficulties, especially in the mainstream media is more non-bear financial responsibility can not be closed down. But the current government on television, newspapers and other major media, the basic funding has been canceled or canceled, the most important advertising revenue income of the media, in terms of some of the media, or even the only income. To the newspaper, the newspaper itself is essentially less than the cost of sales, the loss of advertising revenue often required to fill, as the newspaper's normal daily expenses, such as payroll expenses, office expenses, etc., are dependent on advertising revenue. Make permanent or long lost newspaper media advertising revenue would be tantamount to announce its Or less since the media in China can not be closed down because of financial difficulties, legal liability should not be to let him set the degree of collapse. Because in reality, the responsibility to stop advertising the set in fact eligible for such a small role, the real obstacles to implementation and resistance will be great. I make such judgments, not out of sympathy for illegal media, but taking into account national circumstances. Of course, this does not mean giving up penalties for illegal media. We should choose the best means of punishment. What is the best? To governance in terms of false advertising, since the demise of so much illegal media the reality of obstacles, it should consider how he Gaiecongshan, the best way is to let his recent long-term interests and the interests of been because of false advertising serious damage. Therefore, the issue of false advertising in the media a serious offense, the main can be taken two ways: first, for the case, strictly implement the In addition to confiscation of advertising income, the imposition of media advertising revenue more than doubled the fines, the main purpose of this punishment is not only illegal due to false advertising media, the release of profit, but also to their interests are quite damage, but the ultimate goal is not to collapse. In general, impose a fine of not more than advertising, will not make the media in a serious economic difficulties. Second, through appropriate means disparage the reputation of illegal advertising media, so that the formation of real people and society to judge the credibility of media advertising, resulting in the guiding role should not be underestimated. This is a realization by market forces and non-legal punishment, which will encourage the illegal role of the media Gaiwucongshan not be belittled. The ad because the media is too low will affect the credibility of the media advertisements, the credibility of the follow-up, that is, if people on the issue of information posted on a media can not judge the authenticity of an ad, people will naturally use the advertising media credibility has been judged the credibility of the media so low Guanggu ads posted credibility will also be underestimated. In this case, advertisers, customers as a media advertising, the media will make a choice. The selection criteria is not only the media's ability is more important is the public to judge the credibility of the media advertising. Because of the low credibility of the judgments will naturally affect the advertising effect, which is the advertisers are most concerned about. The media is naturally most concerned about their own advertising revenue, media advertising, the low credibility of the advertiser will make the loss, making it less advertising revenue. This is the most reluctant to see the media, the media will therefore adjust their behavior.

five specific countermeasures

false advertising is a system of governance works, I believe, should offenders, potential offenders, consumers, law enforcement agencies in areas such as the construction and improvement of the system, concrete countermeasures should be based on how to determine the most excellent legal liability, how to deal with the shortage of law enforcement resources, how to provide adequate and effective information and other problems started.

(a) how to determine the best penalty responsibility?

1. virulence capabilities and responsibilities severity. Responsibility is a fine treatment and prevention of false advertising during the most important form of liability, the most commonly used in legal practice. Responsibility should be to determine how the fine? It is clear that, although many factors, but the most critical factor is the virulence capacity of false advertising and harm results. If you look at the issue in isolation, we will evolve a system of false advertising was surprised. Why outside the norms of private law liability evolved fines? Important reason is the ability of false advertising and harm the results of virulence evolution, that is false advertising, the size of the negative externalities changes. Historically, advertising in the form of sound from the early ads, the guise of advertising, lanterns advertising, signs advertising the development of the modern newspaper ads, radio ads, television ads, Internet advertising. Early forms of advertising very narrow scope of its spread, your audience very little, and early in the product structure is relatively simple, the information asymmetry between parties to the transaction is not serious, it is weak virulence of false advertising; and modern advertising because of its extremely strong ability to communicate, advertising audience very much; and because of modern technology on the products or services of the transaction both parties recognized the quality of the transaction there is often the subject of serious information asymmetry, these two factors have led to false advertising of the virulence of modern society adept, and advertisers in the fierce competition for low cost access to more trading opportunities, it is easy publication of false advertising. Under such circumstances, only the use of private law norms and mechanisms, although also the interests of many victims can be compensated after the fact and respond, but to a large number of dispute resolution as a prerequisite for the occurrence of cost, there is no strong prior prevention function. The relatively large amount of fine modern society can make a strong false advertising internalization of negative externalities, thus preventing the generation of false advertising. ① Therefore, from a dynamic point of view, different situations of false advertising should bear the main responsibility for the administrative responsibility is not the optimal constant, often different.

2. a variety of responsibilities in the form of configuration. Here are a variety of responsibilities in the form of the configuration is not a civil, administrative, criminal and other configuration, but specifically refers to the configuration of the various administrative responsibilities. By configuring the responsibility of the main interests in the near future and long-term interests, material interests and the interests of non-material aspects of the damage can be substantial. Primarily by the recent loss of interest penalties liability; the loss of long-term interests of the long-term performance of the reduced trading opportunities, mainly through the suspension of advertising (for advertisers), disparage the reputation of the realization of illegal market; mainly the loss of material benefits for money, wealth, loss, loss of non-material interests of the credit system, mainly through the construction and implementation of the system of notification of the offense or offenses were derogatory market reputation, relegated and so on. This configuration is necessary. Because different types of offenders on the interest, there is a difference in the pursuit of reputation, and some of the main only the pursuit of immediate profit, without taking into account long-term interests and market reputation; some of the main pursuit of immediate interests, but also the pursuit of medium-term interests, not the pursuit of long-term interests; while others are not only the pursuit of the main recent interest, but also attaches great importance to its good reputation in the market behind the long-term interests. Only in this way the responsibility allocated to the benefits of harm offenders, is of concern to most of the offenders. This is at the legislative level. In the law enforcement level, but also individualized as much as possible treatment, although this will make a big enforcement costs. If only the pursuit of short-term interests and not concerned about the people who disparage the reputation is of no use, because he does not pay attention to their reputation, their relative may be imposed heavier fines.

3. the responsibility to determine the optimal fine. Responsibility for how best to determine a fine? Optimal in terms of relative to the best of cases, this optimal take fully into account the virulence capacity of false advertising and harm results. Of course be reflected in the legislative level; also be made at the legislative level range of provisions made by law enforcement agencies to determine the best. No matter what choice to make, no difference in the factors that influence. The author believes that the severity of penalties to consider the following factors: First, according to an identifiable determine the extent of false advertising the amount of fines. More difficult to identify the authenticity of the false advertising, the main responsibility should be given more weight penalty. This is speaking from the virulence capacity, because false advertising is not easy to identify virulence capable. Second, the number of victims and victim determine the extent of the amount of fines. This is a very important criterion. The more victims, fines should be heavier; victims suffer deeper level of fines should also be more severe. Third, according to advertising to determine the number of how many fines. The more the number of false advertising, given the main responsibility should be more severe penalty. Because the more the number, the greater the negative impact. Fourthly, according to the number of ads may determine the audience how much the fine. If Saturday's newspaper ads may be several times more readers than usual, it should be false advertising in Saturday newspapers, the main responsibilities in a relatively heavier fines. Fifth, the criteria to determine when a fine choice. Standard choice is important. Operators of the media and advertising revenue for the fine standard of advertising. A fine of advertisers to the illegal income and expenditure of advertising the higher one as the standard. ; the main cause of false advertising and advertising revenue and advertising costs are not necessarily related, may be far greater than the cost of advertising income, income may be lower than the cost of advertising, so advertising costs as a penalty to the standard is not appropriate. Main reason for release, especially in advertising a very not enough to make advertisers unprofitable situation. Therefore I believe that the standard penalty for advertisers and advertising costs to the illegal income the higher one is due.