Research On The Civil Liability Of False Advertising From An Interpretative Perspective

Rules of civil liability for false advertising can be found in various regulatory systems,and one can find those rules both in traditional private law rules system such as Contract Law,Tort Law etc.,which could be called as traditional civil liability rules;as well as the newly emerging market regulation rules such as Advertising Law,Competition Law and Consumer Law etc.,which could be called as modern civil liability rules.In order to illicit better regulatory effects,it's necessary to clarify the respective function and relative regulatory scope of those two groups of rules.Civil liability clause of Advertising Law should be regarded as the central rule among market regulation law system for regulating false advertising;consequently the interrelationship between this clause and traditional civil liability rules should be explored with great efforts.Firstly,regulatory effects of various civil liability rules concerning false advertising regulation should be clarified.Secondly,comparing the difference of various civil liability rules of false advertising and further analyzing the reasonableness of those rules through the lens of dogmatics.Thirdly,based on the results of former analysis,the civil liability rule of Advertising Law could be reconstructed by using legal interpretation theory so as to optimize the regulatory effects of false advertising regulation.From the perspective of norm analysis,the ambiguity of civil liability rule of Advertising Law makes it hard to generate explicit regulatory effects.There are plenty of uncertainties in interpreting the civil liability rule of advertisers,on one hand,the connotations of "deception","misleading" are not conspicuous,on the other hand,the description of "bearing civil liability" stipulated in Advertising Law also has immense explaining possibilities,which lead to the lack of interpretive boundary.Consequently,this clause has been frequently filled in with various theories from different institutions and generates different judicial decisions.This phenomenon demonstrates that the litigation choices of plaintiff granted by different rules are inappropriately allocated to courts under the disguise of this rule.Advertising endorsers could bear fault or non-fault liability,with the application standard depending on "whether the advertising of product or service is related to consumers' life and health".Although this clause has not been applied in judicial cases up till now,the "inborn deficiencies" of this application standard is likely to much trouble in judicial reviews.Rules of misunderstanding,fraud and culpa in contrahendo can also regulate false advertising.If advertising recipients hope to rescind the contract by referring to misunderstanding rule,proving subject fault of defendants is not necessary,but the "severity" requirement for invoking misunderstanding rule pose an insurmountable obstacle to advertising recipients' judicial relief.When advertising recipients could prove the malice of defraud of advertisers,they can revoke contract by applying fraud rule,and also demand damage compensation under the culpa in contrahendo rule if the contract is valid.In fraud cases,courts do not always scrupulously abide the strict constitutive requirements of fraud rule in judicial reviews.Moreover,false advertising can also trigger tort liability,but the requirements of "damaging legal rights"and"causation" are hard to be satisfied,as a result tort liability of advertises are frequently blocked.According to the "theory of multiple debtors" in German law,although the liability foundation is different,advertising operators,publishers and advertisers should bear joint liability.When advertising operators and publishers share the same subjective fault with advertisers or their individual behaviors correlates in causation so as to generate the same damage,joint liability under common tort rule should be imposed on them.Comparing the regulatory effects between civil liability rule of advertising law and traditional private law system,one can conclude that civil liability rule for advertisers in advertising law could be absorbed by traditional private law system.When the damage caused by the fault of advertising operators or publishers are different from the advertisers,the regulatory effects of fault liability for advertising operators and publishers are divergent from the applying common tort institution,and the application of fault liability rule could bring about better protection for advertising recipients,although the theoretical foundation of this protection is not quite solid.The non-fault liability for advertising operators and publishers completely transcend the boundary of civil liability institutions in traditional private law system,however the theoretical legitimacy of this rule is also quite weak,which maybe the reason why courts frequently abandon this clause in judicial decisions.The non-fault liability for advertising endorsers contains overt intention of consumer protection,although the liability foundation is not quite appropriate from the perspective of traditional civil liability theory,however compared with sellers' non-fault liability for defective products,the similarity of those two institutions both in components and effects may provide legitimate foundation for endorsers'non-fault liability.The only question is that confining this non-fault liability to false advertising which "concern consumers' life and health" may bring about injustice outcomes.It's concluded that civil liability clause of advertisers should be regarded as a pure explaining clause or declarative clause,and the foundation of Anspruchsgrundlage should be referred to traditional civil liability institutions.When the faults of advertising operators and publishers obviously have little correlation with the damages which may incur civil liability,the fault liability of advertising operators and publishers should be restricted by the theory of multiple debtors or common tort,and the joint liability should not be imposed without distinction.The non-fault liability of advertising operators and publishers greatly diverge from the traditional civil liability institutions,and the theoretical foundation is too weak,as a result the following treatment of this clause in judicial reviews by courts is appropriate:breaking through the semantic interpretation of this clause and denying the its self-independence.The non-fault liability of advertising endorsers should be confined to the situation where the products or services related to advertising have defects,and the components of effects of this clause should be brought into correspondence with the sellers' liability of defective products.