? Wu hedi
For false propaganda, anti-unfair competition law, advertising law, food safety law and other laws have corresponding provisions. To correctly punish false propaganda, accurate application of the law is the key.
First, the legal application of food false propaganda behavior
1. The act of using advertisements to make false propaganda about food. Such acts should be punished in accordance with the provisions of the Advertising Law. This is because the first paragraph of Article 140 of the Food Safety Law stipulates: "Whoever, in violation of the provisions of this law, makes false propaganda about food in advertisements to deceive consumers, or publishes health food advertisements without approval documents, the contents of which are inconsistent with the approval documents, shall be punished in accordance with the provisions of the Advertising Law of People's Republic of China (PRC)."
2. Use meetings, lectures, health consultations and other means to make false propaganda about food. Such acts shall be punished in accordance with the provisions of the Anti-Unfair Competition Law and the Regulations for the Implementation of the Food Safety Law. This is because on April 1 2020, the Reply of the General Office of the State Administration of Market Supervision on Relevant Issues Concerning the Application of Laws in the Trial of False Food Publicity Cases (No.463 [2020] of the Municipal Supervision and Competition Letter) clearly pointed out: "It is serious to make false or misleading commercial publicity on the performance, function and quality of food in various ways, such as meetings, lectures and health consultation. At the same time, for those who make false propaganda about food by means of meetings, lectures and health consultation, the market supervision department will punish them according to Article 20 of the Anti-Unfair Competition Law, or confiscate the illegal income according to Article 73 of the Regulations for the Implementation of the Food Safety Law. If the unit violates the law, in accordance with the provisions of Article 75 of the Regulations on the Implementation of the Food Safety Law, the legal representative, principal responsible person, directly responsible person in charge and other directly responsible personnel of the unit shall be punished. "
Two, the "Anti Unfair Competition Law" and "Advertising Law" on the application of false propaganda.
Article 4 of the Advertising Law stipulates: "Advertisements shall not contain false or misleading contents, and shall not deceive or mislead consumers." Article 8 of the Anti-Unfair Competition Law stipulates: "Operators shall not make false or misleading commercial propaganda on the performance, function, quality, sales status, user evaluation and honor of their commodities, so as to deceive or mislead consumers. Operators shall not help other operators to carry out false or misleading commercial propaganda by organizing false transactions. " It can be seen that there is legal concurrence between the two laws for false propaganda. The general principles of its legal application are as follows:
1. From the way of publicity. See whether to use advertising or other means to promote. Those who use advertisements for false propaganda shall be punished in accordance with the provisions of the Advertising Law of People's Republic of China (PRC); The provisions of the Anti-Unfair Competition Law shall apply to false propaganda by means other than advertising. As for whether false propaganda is an advertisement, it should be judged according to the definition of "advertisement" in the Advertising Law. If false propaganda acts are false advertisements, they shall be punished in accordance with the provisions of the Advertising Law. Because the second paragraph of Article 20 of the Anti-Unfair Competition Law stipulates: "Operators who publish false advertisements in violation of the provisions of Article 8 of this Law shall be punished in accordance with the provisions of the Advertising Law of People's Republic of China (PRC)."
2. From the propaganda content. Looking at the content of false propaganda, generally speaking, false propaganda about the basic information of enterprises tends to be characterized as unfair competition. It is one of the marketing strategies of an enterprise to properly publicize its business reputation, operating conditions and image in order to take the lead in market competition. However, exaggerating and fabricating facts for publicity is a typical unfair competition, which violates the law of honest and trustworthy market competition and undermines the fair and just market competition order. Therefore, it is inclined to apply the anti-unfair competition law.
3. From the carrier of propaganda. Look at the carrier that publishes false propaganda information. If the carrier of false propaganda acts is newspapers, periodicals, magazines, television, movies and other media owned by a third party other than the operator, the advertising law is generally preferred; If the false propaganda behavior is carried out independently by the operator using the media or channels he has mastered, that is, the whole false propaganda behavior is carried out under the sole control of the operator, and no one other than the operator has independently designed and operated the activities, then the anti-unfair competition law tends to apply. For example, operators make false propaganda on their own websites, WeChat official accounts and other media.
4. From the point of view of the infringed object. Looking at the main object of infringement of false propaganda, if false propaganda only infringes on the legitimate rights and interests of other operators and destroys the market order of fair competition, or false propaganda not only infringes on the legitimate rights and interests of consumers, but also infringes on the legitimate rights and interests of other operators, then the Anti-Unfair Competition Law should be applied first.
Three, both false propaganda behavior, but also in violation of other laws and regulations, the law shall apply.
In practice, false propaganda is usually intertwined with other illegal acts. When the operator violates several laws and regulations while making false propaganda, the key is to see whether the behavior implemented by the operator is one behavior or several behaviors. If it is a behavior in essence, it should be punished qualitatively according to the principles of objective behavior absorbing means behavior and emphasizing behavior absorbing light behavior. If there are several behaviors in essence, we should deal with them separately. The main situation is as follows.
Case 1: When other acts other than false propaganda are independent, false propaganda is not a means to achieve another illegal act, and each act has independent elements of illegal acts, it should be considered that the parties have committed several illegal acts. For example, business operators make false propaganda in the process of selling products, and at the same time take commercial bribery and false prize-winning sales in order to promote products. Then commercial bribery, false prize-winning sales and false propaganda are not the same behavior, they are independent of each other and constitute several illegal acts, which should be punished qualitatively respectively.
Case 2: When false propaganda acts are the means to commit other illegal acts, which are inseparable from other acts, and cannot exist independently of other illegal acts, it should be considered that false propaganda acts are related to other acts, and the parties have actually committed an illegal act. For example, in the process of implementing pyramid schemes, operators make false propaganda in order to sell their own products, so implementing pyramid schemes is their purpose behavior, and false propaganda behavior is their means behavior. Then this pyramid scheme and false propaganda behavior are illegal in nature and should be punished qualitatively according to illegal pyramid schemes.
Situation 3: When false propaganda violates other laws and regulations at the same time, it constitutes an act of overlapping laws and regulations or imaginary competition, which shall be deemed as an illegal act. For example, the operator's behavior of falsely publicizing the patent of his products violates the patent law and the anti-unfair competition law at the same time. At this time, the provisions of the patent law on counterfeiting patents should be given priority. This is because the provisions of the Patent Law on counterfeiting patents are special laws compared with the Anti-Unfair Competition Law, and the provisions of the Patent Law on counterfeiting patents should be applied first. For another example, when the operator uses the product label to make false propaganda about the composition, performance and function of the product, and this behavior violates the provisions of the product quality law, trademark law, standardization law, certification and accreditation regulations, food safety law, etc., it constitutes legal competition and imaginary competition in the content of product labels and related commodities, and so on. At this time, it is necessary to make qualitative treatment according to the principle that special law is superior to common law or choose the law with heavier punishment.