Determination Of False Advertisin

With the vigorous development of our market economy,the market competition is increasingly fierce,the operators do their best to find a place in the competition spring tide prominent encirclement,commercial publicity is the sharp tool to expand the market effectively.However,there will be chaos under the prosperity,which is followed by endless false propaganda,which unjustly grabs commercial interests,and makes well-intentioned market competitors lose original customer resources,lose market competitiveness and get into trouble.Consumers make wrong judgments and trade with them under the influence of false propaganda,which undermines the order of fair and healthy competition in the market.With the strong voice of the academic community,the newly revised Anti-Unfair Competition Law of the People’s Republic of China in 2017 revised the criteria for the identification of false publicity,clearly stipulating that false publicity includes both false commercial publicity and commercial publicity that causes related public misunderstanding,marking a big leap forward in the Anti-unfair Competition Law.But it also makes the application of "false propaganda" in practice have a tendency to expand.On July 30,2021,the Supreme People’s Court of the People’s Republic of China issued Guiding Case No.161: The case of Guangzhou Wanglao Ji Great Health Industry Co.,Ltd.v.Jiaduobao(China)Beverage Co.,Ltd.over false publicity makes the concept of "false publicity" appear in the public eye again.Taking this case as an example,this paper explains the identification of false publicity behavior in the Anti-unfair competition Law by example,and redefines the judgment standard of false publicity behavior.It provides reference and direction for the subsequent handling of disputes over unfair competition and false publicity,and also provides benign guidance and constraints for the behaviors of market participants and market competitors.On this basis,this paper carries out research on this issue,which is divided into four parts: The first part introduces the case of false publicity dispute between Guangzhou Wanglaoji Health Industry Co.,Ltd.and Jiaduobao(China)Beverage Co.,Ltd.and summarizes the three focal points of the case.The second part,centering on the first dispute focus of the case,proposes the first identification method of false publicity behavior--authenticity identification.By enumerating the specific external manifestations of different types of false publicity,and comparing and differentiating the false publicity behavior with the anti-unfair competition behavior which also has similar external manifestations,More clearly from the external expression form of propaganda and description of the specific content contrary to the objective facts to identify the false propaganda behavior;The third part focuses on the second dispute of the case and puts forward the second identification method of false publicity behavior--possibility identification.Firstly,it lists the criteria of judging whether it is enough to mislead the public from the perspective of unfair competition behavior and consumers respectively,and then discusses the definition of whether false publicity is constituted when the two types of composition coincide and conflict.The fourth part puts forward the third determination method of false publicity behavior around the third dispute focus of the case,fault determination,respectively from the subjective and objective aspects of the behavior to evaluate whether there is fault in the operator’s publicity behavior.The Anti-Unfair Competition Law is not equal to the tort law,so whether it has subjective fault is not the requirement of fault determination.At the same time,because of the particularity of market competition,we should distinguish the boundary between normal market competition behavior and malicious competition behavior,strictly judge whether there is fault,and protect the order of benign competition of market economy.