比较广告违法性及法制完善初探
发布时间：2019-05-22 00:53
【摘要】： 比较广告作为广告的一种特殊形式,在现实生活中既备受青睐又颇受争议,究其原因是比较广告采用对比的方式进行产品宣传,这一固有特征决定了比较广告利弊共存。一方面比较广告采用对比的方式进行宣传能醒目地突出产品间的差异与优劣,对消费者具有强烈的劝服作用;另一方面行为人出于对自身经济利益的考虑,在比较过程中总会自觉或不自觉地、或多或少地贬低他人,抬高自己。比较广告使用不当会构成不正当竞争。随着市场经济的发展,比较广告引发的纠纷也越来越多,因此法律如何有效地对比较广告进行引导和规范,使之扬长避短,是我们面临的重要课题,也是本文关注的焦点。笔者认为正如任何事物都有两面性,比较广告也不例外。因此我们对待比较广告不能一刀切,既要肯定比较广告有其存在的合理性和合法性,也要对比较广告进行适当的必要的管制,对比较广告要扬长避短,关键还在于避短,即对违法比较广告进行认定与处理。 构成违法比较广告时的表现形式是多样的。可以看出,不正当竞争行为是最主要的违法比较广告行为,而误导行为和诋毁行为则是违法比较广告最主要、最突出的表现形式。对于违法比较广告,应当从行为主体、主观方面、行为客体、客观方面进行分析认定。对于虚假比较广告、误导比较广告和诋毁比较广告,应根据相应的判断规则进行认定。 从我国目前现有的法律法规体系来看,我国高位阶法律对比较广告的直接法律规范相对缺失;而行政法规、规章等对比较广告有一些规定,但法的位阶低而且缺乏可操作性。因此,借鉴国外的相关立法,笔者认为完善我国比较广告法律规制首先应在立法上明确允许比较广告,并设立科学的法律规范;其次要把握好比较广告的国际发展趋势,衡量利益,适时而变,并建立健全相应的社会监督机制。
[Abstract]:As a special form of advertising, comparative advertising is both favored and controversial in real life. The reason is that comparative advertising uses comparative advertising to carry out product publicity, which determines the coexistence of advantages and disadvantages of comparative advertising. On the one hand, comparative advertising can highlight the differences and advantages and disadvantages between products, and has a strong persuasive effect on consumers. On the other hand, out of consideration of their own economic interests, the actor will always belittle others and raise himself more or less consciously or unconsciously in the process of comparison. The improper use of comparative advertising will constitute unfair competition. With the development of market economy, there are more and more disputes caused by comparative advertising. Therefore, how to guide and standardize comparative advertising effectively so as to make it develop its advantages and avoid its weaknesses is an important issue we face, and it is also the focus of this paper. The author thinks that just as everything has two sides, comparative advertising is no exception. Therefore, we should not deal with comparative advertising across the board. We should not only affirm the rationality and legitimacy of comparative advertising, but also carry out appropriate and necessary control over comparative advertising. The key to comparative advertising is to avoid its strengths and weaknesses. That is, to identify and deal with illegal comparative advertising. The forms of expression when constituting illegal comparative advertising are diverse. It can be seen that unfair competition behavior is the most important illegal comparative advertising behavior, while misleading behavior and slander behavior are the most important and prominent forms of illegal comparative advertising. For illegal comparative advertising, we should analyze and identify it from the aspects of subject, subjective, object and objective. For false comparative advertising, misleading comparative advertising and slandering comparative advertising, we should identify it according to the corresponding judgment rules. From the current system of laws and regulations in our country, the direct legal norms of comparative advertising are relatively lacking in the high-ranking laws and regulations of our country, while the administrative regulations and regulations have some provisions on comparative advertising, but the rank of the law is low and lack of maneuverability. Therefore, drawing lessons from the relevant legislation of foreign countries, the author believes that to perfect the legal regulation of comparative advertising in our country, we should first explicitly allow comparative advertising in legislation, and establish scientific legal norms. Secondly, we should grasp the international development trend of comparative advertising, measure interests, change at the right time, and establish and perfect the corresponding social supervision mechanism.
【学位授予单位】：上海交通大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.294
本文编号：2482539
[Abstract]:As a special form of advertising, comparative advertising is both favored and controversial in real life. The reason is that comparative advertising uses comparative advertising to carry out product publicity, which determines the coexistence of advantages and disadvantages of comparative advertising. On the one hand, comparative advertising can highlight the differences and advantages and disadvantages between products, and has a strong persuasive effect on consumers. On the other hand, out of consideration of their own economic interests, the actor will always belittle others and raise himself more or less consciously or unconsciously in the process of comparison. The improper use of comparative advertising will constitute unfair competition. With the development of market economy, there are more and more disputes caused by comparative advertising. Therefore, how to guide and standardize comparative advertising effectively so as to make it develop its advantages and avoid its weaknesses is an important issue we face, and it is also the focus of this paper. The author thinks that just as everything has two sides, comparative advertising is no exception. Therefore, we should not deal with comparative advertising across the board. We should not only affirm the rationality and legitimacy of comparative advertising, but also carry out appropriate and necessary control over comparative advertising. The key to comparative advertising is to avoid its strengths and weaknesses. That is, to identify and deal with illegal comparative advertising. The forms of expression when constituting illegal comparative advertising are diverse. It can be seen that unfair competition behavior is the most important illegal comparative advertising behavior, while misleading behavior and slander behavior are the most important and prominent forms of illegal comparative advertising. For illegal comparative advertising, we should analyze and identify it from the aspects of subject, subjective, object and objective. For false comparative advertising, misleading comparative advertising and slandering comparative advertising, we should identify it according to the corresponding judgment rules. From the current system of laws and regulations in our country, the direct legal norms of comparative advertising are relatively lacking in the high-ranking laws and regulations of our country, while the administrative regulations and regulations have some provisions on comparative advertising, but the rank of the law is low and lack of maneuverability. Therefore, drawing lessons from the relevant legislation of foreign countries, the author believes that to perfect the legal regulation of comparative advertising in our country, we should first explicitly allow comparative advertising in legislation, and establish scientific legal norms. Secondly, we should grasp the international development trend of comparative advertising, measure interests, change at the right time, and establish and perfect the corresponding social supervision mechanism.
【学位授予单位】：上海交通大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.294
【引证文献】
相关期刊论文 前1条
1 孙杰;吴翔翔;;关于比较广告的法概念分析[J];法制博览(中旬刊);2013年08期
相关硕士学位论文 前2条
1 史晶晶;论市场误导行为的法律规制[D];山西大学;2011年
2 任海勇;不正当比较广告的法律规制研究[D];西南政法大学;2012年
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