Case: On February 2, 2020, law enforcement officers of the Market Supervision Administration of Sujiatun District, Shenyang City conducted an on-site inspection of the Wanchun Kangda Pharmacy Chain Co., Ltd. Yingchun North Street store and found that the advertisement issued by the store contained Wanjia Kangda Pharmacy The content of preferred against coronavirus, improving immunity to prevent colds, mask + vitamin C + disinfectant, antiviral prevention of influenza, flu pills + Lanqin oral solution, Banlangen granules + four seasons antiviral capsules are considered to be suspected of using the epidemic The publication of false advertisements violates the relevant provisions of the Advertising Law of the People's Republic of China, so it is filed for investigation and handling according to law.
The Supreme Law, the Supreme People’s Procuratorate, the Ministry of Public Security and the Ministry of Justice promulgated the “Opinions on Punishing and Preventing Crimes that Prevent and Control New Coronavirus Infection with Pneumonia” (hereinafter referred to as the “Opinions”) on February 10, 2020. During the epidemic prevention and control period, in violation of national regulations, in the name of epidemic prevention and control, using advertisements to falsely advertise the goods or services that are promoted, causing multiple people to be deceived, the illegal gains are large or there are other serious circumstances, according to The provisions of Article 222 of the Criminal Law convict and punish the crime of false advertising. This article has made more people pay attention to the crime of false advertising.
1. Legal regulations related to false advertising
(1) Administrative regulations
The crime of false advertising is a typical statutory offense. The advertising law pre-law provides for its basic meaning and illegal behavior. Among them, Article 28 stipulates the formal elements of false advertising, and Article 55 stipulates the corresponding administrative responsibilities and clearly may constitute a criminal offense.
(2) Criminal law provisions
Article 222 of Chapter 3 of the Criminal Law, Crime of Disrupting the Socialist Market Economic Order, provides for the crime of false advertising, making it clear that advertisers, advertising operators, and advertising publishers violate state regulations and use advertisements to make false products or services. If the propaganda is serious and the circumstances are serious, it shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention, and shall be punished with a single fine.
As for the standard of criminalization of this crime, the Provisions on the Standard for Prosecution of Criminal Cases under the Public Security Organs (II) promulgated by the Supreme People’s Procuratorate and the Ministry of Public Security on May 7, 2010 (hereinafter referred to as the “Provisions (II)” ) Article 75 stipulates, “Advertisers, advertising operators, and advertising publishers violate the state regulations and use advertisements to falsely promote goods or services. If one of the following circumstances is suspected, they shall be prosecuted: (1) The amount of illegal income Above 100,000 yuan; (2) Where the direct economic loss to a single consumer is above 50,000 yuan, or the cumulative direct economic loss to multiple consumers is above 200,000 yuan; (3) Fake borrowing In the name of preventing and controlling emergencies, using advertisements for false propaganda, causing many people to be deceived, and the amount of illegal income is more than 30,000 yuan; (4) Although the above amount standard is not met, but because of the false propaganda for using advertisements within two years , Who have received administrative punishment more than two times and used advertisements for false propaganda; (5) causing personal injury and disability; (6) other serious circumstances.
2. Criminalization of the crime of false advertising
(1) Determination of objective behavior
Based on the criminal law coordinates of this crime, the legal benefits of this crime are first understood as the order of the market economy, detailed into the order of advertising management and the order of market competition. It is difficult to deny that the abstraction of order theory does not have a guiding role in the determination of specific acts, and it seems that the legal benefits of statutory offenders need not be discussed, because they at least violate the provisions of the law itself, and protect the other legal norms with criminal law. Let the criminal law become formalized. So for this crime, false advertising has caused deception and misleading to unspecified consumers and hurt their legitimate rights and interests. Therefore, when the economic order is subdivided into the rights and interests of consumer groups, the application of the provisions of the criminal law is only substantive. Judging from the filing standards, the damaged rights and interests of consumers can be further refined into economic interests and personal rights. The guiding role of specific legal benefits in criminal determination cannot be underestimated.
For violating national regulations, the Advertising Law is naturally listed. According to the aforementioned Article 28, the second paragraph product performance, function, origin, use, quality, specifications, ingredients, price, producer, expiration date, sales status, received honors and other information, or service content, provider , Information such as form, quality, price, sales status, honors received, and promises related to goods or services are inconsistent with the actual situation, and those that have a substantial impact on the purchase behavior are closest to the pharmacy advertisements during the epidemic, administrative Law enforcement agencies believe that the drugs listed in the advertisements exaggerate the true curative effect of preventing or even curing new coronary pneumonia, so they meet the requirements for false advertisements.
Regarding the use of advertisements for false propaganda of products involves the identification of commercial advertising elements. Article 2 of the new Advertising Law deletes the expression to bear advertising costs, but the author believes that this does not represent the demise of the paid element. The boundary between commercial advertising and non-commercial advertising should be strictly determined, so payability is still an essential requirement. Posters posted in pharmacies are usually not paid, they are involved and produced by themselves, and the cost is negligible.
For the judicial determination of serious circumstances, please refer to Regulations (2). Most of the six prosecution standards are based on quantity, and the existence of serious circumstances is affirmed, and the crime is established. However, this formalized condition of criminalization has certain flaws in judicial practice. First, the criteria for determining the amount of illegal income are not uniform. Checking the relevant judgment documents, there are various expressions, such as the amount involved, the actual amount of charges, the amount of sales, the amount of profit, etc. Second, in order to evade criminal responsibility, many illegal enterprises will choose to close the enterprises that have received administrative punishment and set up another portal, which directly leads to non-compliance of formal requirements. Third, there are difficulties in identifying fraudulent consumers by using false advertising in the name of prevention. Taking this epidemic as an example, the direct consequence of the new virus is the lack of a clear treatment plan. It is difficult to affirm the unauthenticity of drug advertisements when there is no drug with a 100% curative effect. The words Lianhua Qingwen Capsules against Influenza are not unsatisfactory to a certain extent, not to mention that some medicines have been used in actual treatment and have produced some patients with effective results. To generalize such propaganda slogans on the grounds of exaggerated efficacy may be biased. Therefore, there is great uncertainty in the determination of objective behavior.
(2) Determination of subjective responsibility
There is a view that the subjective purpose of the relevant actors of false advertising is to make others be deceived and consume through the advertisement to obtain benefits. They have a full understanding of the unauthenticity of the advertising content, knowing that the content is false or misleading and causes harm As a result, the relevant behavior is still implemented. The substantive interpretation is by no means directed only at objective constituent elements, and subjective responsibility elements should also apply. Therefore, although the perpetrator’s objective behavior and results have reached the standard of filing, it cannot be simply criminalized. The determination of its subjective responsibility requirements is also important, requiring the perpetrator to have an understanding of the social hazards of the conduct . To be honest, it is difficult for us to believe that the intention of pharmacy owners to publish advertisements with the words prevent virus is to deceive or even make profits. Their real purpose is mostly for the sake of citizens' health, and the intricate news on the Internet makes pharmacy staff subjective This kind of medicine has the impression that it has a curative effect on preventing viral influenza, and is promoted under the guidance of this consciousness. Therefore, it is difficult to affirm its awareness of the negative social evaluation of the advertising behavior.
In short, the drug poster propaganda done by pharmacies during the epidemic was largely not socially worthy of criminal law punishment and could not be regulated by criminal law.
3. Summary
Although the Opinions make it clear that the crime of false advertising has the possibility of application, this does not mean that the standard of criminalization is lowered. Fighting crime during an epidemic is of course important, but it must not be criminalized in a formal manner, so that the criminal law is reduced to the social management law and the priority protection law, maintaining the modesty of the criminal law, and allowing the administration to be under the administrative control, in order to truly realize the adaptation of crime and punishment, and play the legal interest protection of the criminal law function.