2016-04-20 16:55
Industrial and Commercial Bureau: new advertising law of absolute terms penalties for the negative effect
[news] April 20th reporting network in Beijing (Wuxi Industrial and Commercial Bureau) new "advertisement law" is regarded as the most serious in the history of the advertising law. But from the perspective of social response, the most stringent mainly in absolute terms of punishment. The advertising industry also have the use of "good to the violation of advertising law", to the advertising law not to say "copy to the standpoint of the law.
Undeniable, the new law on absolute terms the provisions to in a short period of time to do advertising supervision organs increased law enforcement authority, however, as the advertising supervision organs, if we just complacency in this law within a short period of time may bring the enforcement authority of sense, but I do not want to grounded to think the new law so carry out may lead to the consequences of, then, we not only have contrary to their own responsibilities and in the long run will also to the business sector bring considerable negative effects.
May be a negative effect, the new law.
According to the provisions of the new "advertisement law" article ninth and the provisions of article fifty-seventh, the use of absolute terms of punishment, not in accordance with multiple advertising costs but directly applicable amount of the penalty, starting at 200 thousand above. A fine of more than 200 thousand, for any one market, is not an acceptable number of casual.
Though, some enterprises have a strong sense of risk before the entry into force of the new law began the problem for rectification, but it is important to note is that after the entry into force of the new "advertisement law", according to the author of the available data, some day cat shop and some small individual industrial and commercial households began to have caught. Due to the expected reward punishment is considerable, a lot of occupation informants pick up new advertising law to report to the Department of industry and commerce.
In the business sector, not to deal with dereliction of duty responsibility, treatment, punishment may be unacceptable. Especially some individual industrial and commercial households, in the face of such a high level of punishment, may simply can not afford, so can only choose the closure or in other ways to avoid punishment. This is clearly not the legislative department and law enforcement departments desired results. Though, the State Administration for Industry and commerce is aware of the the problem. In the internal guidance proposed can be applied to the relevant provisions of the "administrative punishment law," the article 27, paragraph 2, of social harm is lighter on the grounds of not or mitigated administrative punishment, but such an approach, can withstand the review of administrative reconsideration or judicial organs, it is doubtful if.
The most important is that such a punishment is too heavy, in practice will lead to serious law enforcement. For some large enterprises, in fact, strong, put aside other factors, the punishment will not cause too many problems. But for some small businesses, because worry about can not accept, may not penalize the. Obviously, it has contrary to the law of the principle of equality of all citizens before and to the business sector's discretion space is too large.
Two, the serious mistakes of the legislative style
As is known to all, China's legislature is very serious. No one can deny the role of the General Administration for Industry and Commerce in the legislative process of the new advertising law, it can be said that the law reflects the views of the industrial and commercial system or the State Administration for Industry and commerce. Although the legislative process also sought the views of the public, but surprisingly, of absolute terms of penalty problem is basically no objection.
In fact, 1994 "advertisement law" Article 7 had provisions on the prohibition of the use of absolute terms, the new "advertisement law" Article 9 corresponding is old "advertisement law" Article 7, from the old and new laws and regulations, the contents of the two terms before and after the changes and is not very big, however, corresponding to the amount of the penalty are worlds apart. 1994 "advertisement law" provisions of Article 39 of penalties only requires the advertising supervision and administration organ shall be ordered to bear the responsibility of advertisers, advertising agents and publishers to stop publishing, make open corrections, confiscate the advertising expenses, impose advertising costs more than double less than five times the fine, but new "advertisement law" Article 9 corresponding penalties is required by the provisions of punishment between 20-100 million.
From a legal point of view, for the new "advertisement law" the provisions of Article 9 in addition to the absolute terms illegal situation, involved is of national image, social ethics, privacy and other major issues, to be a severe punishment, I do not oppose. But the new "advertising law" third ninth on the absolute terms of the provisions of the main market is a fair competition order and consumer rights and interests, the social harm and the other circumstances do not have equal sex. Continue in penalties has undergone major changes, at the same time, the absolute terms of provisions and other content is placed in the same article, is clearly a major failure of a legislative style. This, also in violation of the "administrative punishment law" second fourth "setting and implementation of administrative penalties must be based on facts, and violations of the facts, nature, circumstances and the degree of social harm," the provisions of.
Three, suggestions
The present situation, proposed by the State Administration for Industry and Commerce in accordance with the provisions of the administrative punishment law to reduce the punishment or exempted from punishment practices under the existing legal framework is the most suitable, but, after all, is only an expedient measure and itself, there are many legal problems. Therefore, the following recommendations are made:
First, the State Administration for Industry and commerce to draw up the National People's Congress as soon as possible to start the "advertising law" to modify the program, the provisions of the absolute terms from the ninth out of the other provisions of the other set.
Two, at the same time, its punishment, it is recommended to refer to the provisions of false advertising, to improve its penalties, and should not be punished by a fixed penalty. 3
Editor: Xiao Shen
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