论我国虚假广告的刑事规制
发布时间：2019-07-09 11:46
【摘要】：改革开放以来，我国广告事业突飞猛进，但是随之出现的是虚假广告的大肆泛滥，严重侵犯了消费者的合法权益，扰乱了市场经济的自由竞争秩序。为了遏止此种情况，我国97年刑法典新增虚假广告罪，但是面对海量的虚假广告行为，被判处此罪的却只有寥寥数起。造成这种司法窘境的主要原因首先在于刑法在虚假广告罪的内涵界定、认定标准上不清晰，，使司法人员在面对虚假广告行为时往往难以准确把握该罪的适用范围，只能在罪与非罪、此罪与彼罪之间徘徊。其次，虚假广告罪将犯罪主体限定为广告主、广告经营者及广告发布者，但实际上广告荐证者也有可能在其中发挥重大作用。另外，现有立法仅仅对商业广告予以规制也稍显狭隘。再次，从刑罚配置来看，虚假广告罪的法定刑幅度单一，刑惩力度不足，罚金刑的适用也缺乏可操作性。以上诸多不足之处，在某种程度上限制了对虚假广告行为的预防和打击。 本文在对我国虚假广告罪的立法沿革与立法现状进行梳理和分析的基础上，参考域外的先进立法，对我国虚假广告罪的立法及司法完善问题提出了一些设想。具体包括：统一虚假广告罪的认定标准，明确“虚假广告”和“情节严重”的界定标准；扩大对虚假广告的规制范围；将广告荐证者引入虚假广告罪的责任主体；在刑罚配置上，增设法定刑幅度，完善罚金刑。以期该罪名能够更好的发挥其维护市场经济秩序、保护消费者合法权益的作用。
[Abstract]:Since the reform and opening up, China's advertising industry has advanced by leaps and bounds, but then there is a huge proliferation of false advertising, which seriously infringes on the legitimate rights and interests of consumers and disrupts the free competition order of the market economy. In order to curb this situation, the 1997 Criminal Code of our country added the crime of false advertising, but in the face of a large number of false advertising acts, only a few people were convicted of this crime. The main reason for this judicial dilemma lies in the definition of the connotation of the crime of false advertising in criminal law, and the identification standard is not clear, which makes it difficult for judicial personnel to accurately grasp the scope of application of the crime in the face of false advertising behavior, and can only wander between crime and non-crime, this crime and that crime. Secondly, the crime of false advertising limits the subject of crime to advertisers, advertising operators and advertising publishers, but in fact, advertising referrals may also play an important role in them. In addition, the existing legislation only to regulate commercial advertising is also slightly narrow. Thirdly, from the point of view of penalty allocation, the legal punishment range of false advertising crime is single, the punishment is insufficient, and the application of fine penalty is also lack of maneuverability. To some extent, the above shortcomings limit the prevention and punishment of false advertising. On the basis of combing and analyzing the legislative evolution and present situation of false advertising crime in our country, and referring to the advanced legislation outside the country, this paper puts forward some tentative ideas on the legislation and judicial perfection of false advertising crime in our country. The concrete includes: unifying the identification standard of false advertisement crime, defining the definition standard of "false advertisement" and "serious circumstances"; expanding the regulation scope of false advertisement; introducing the advertisement recommendation to the subject of responsibility of false advertisement crime; in the penalty allocation, adding the legal penalty range to perfect the fine penalty. In order to better play its role in maintaining market economic order and protecting the legitimate rights and interests of consumers.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.33;D922.294
本文编号：2512124
[Abstract]:Since the reform and opening up, China's advertising industry has advanced by leaps and bounds, but then there is a huge proliferation of false advertising, which seriously infringes on the legitimate rights and interests of consumers and disrupts the free competition order of the market economy. In order to curb this situation, the 1997 Criminal Code of our country added the crime of false advertising, but in the face of a large number of false advertising acts, only a few people were convicted of this crime. The main reason for this judicial dilemma lies in the definition of the connotation of the crime of false advertising in criminal law, and the identification standard is not clear, which makes it difficult for judicial personnel to accurately grasp the scope of application of the crime in the face of false advertising behavior, and can only wander between crime and non-crime, this crime and that crime. Secondly, the crime of false advertising limits the subject of crime to advertisers, advertising operators and advertising publishers, but in fact, advertising referrals may also play an important role in them. In addition, the existing legislation only to regulate commercial advertising is also slightly narrow. Thirdly, from the point of view of penalty allocation, the legal punishment range of false advertising crime is single, the punishment is insufficient, and the application of fine penalty is also lack of maneuverability. To some extent, the above shortcomings limit the prevention and punishment of false advertising. On the basis of combing and analyzing the legislative evolution and present situation of false advertising crime in our country, and referring to the advanced legislation outside the country, this paper puts forward some tentative ideas on the legislation and judicial perfection of false advertising crime in our country. The concrete includes: unifying the identification standard of false advertisement crime, defining the definition standard of "false advertisement" and "serious circumstances"; expanding the regulation scope of false advertisement; introducing the advertisement recommendation to the subject of responsibility of false advertisement crime; in the penalty allocation, adding the legal penalty range to perfect the fine penalty. In order to better play its role in maintaining market economic order and protecting the legitimate rights and interests of consumers.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.33;D922.294
【参考文献】
相关期刊论文 前7条
1 司若;;制片人——影视剧项目经理的角色定位与工作责任[J];当代电影;2010年06期
2 应飞虎;;对虚假广告治理的法律分析[J];法学;2007年03期
3 宋亚辉;;广告荐证人承担连带责任的司法认定——针对《广告法(修订征求意见稿)》第60条的研究[J];现代法学;2009年05期
4 邓纲;;争议与困惑:经济法中的法律责任研究述评[J];现代法学;2012年01期
5 黎邦勇;张洪成;;重新认识虚假广告罪的法益位阶及构成要件[J];中国刑事法杂志;2009年07期
6 成靖;;论荐证广告的法律规制[J];政治与法律;2007年05期
7 曾咏梅;;论商业广告代言人的法律责任[J];中国人民大学学报;2009年01期
本文编号：2512124
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