【作者】 于林洋；

【导师】 陈苇；

【作者基本信息】 西南政法大学 ， 民商法学， 2011， 博士

【摘要】 伴随着我国市场经济的快速发展,荐证广告(学界一般称为代言广告或证言广告)也进入其发展的繁荣时期,由此,越来越多的人步入广告“荐证”行列。近年来,许多荐证广告因内容虚假而被曝光,虚假荐证问题已经成为社会反映强烈的一种社会流弊,有关消费者与广告荐证者(以下简称“荐证者”)之间的诉讼纠纷也不时见诸报端。我国目前尚未制定关于广告荐证规制的专门规范,相关规定较为零散,真正意义上的广告荐证行为规范很少。与广告荐证的法律规制较为先进的美国以及我国台湾地区相比,我国内地(以下简称“我国”)的相关制度显得较为落后,“荐证门”事件的频繁发生也暴露了我国关于广告荐证法律规制的制度性缺陷,应该引起立法者的高度关注。在此背景下,本文针对广告荐证的基础理论、广告荐证的行为规范、广告荐证的责任解构以及广告荐证法律规制的借鉴与完善等方面进行了系统研究。本文除导论、结语外,正文共分为四部分,共计26万字。关于广告荐证的基础理论。广告荐证是指广告主以外的人以自己的名义在广告中直接或者间接地向消费者推荐商品或服务,或者对其质量、性能、品质、功效等进行证明,以引起消费者注意、信赖从而说服其购买商品或接受服务的广告宣传行为。广告荐证具有典型的“人格性”特征,同时兼具“公示公信性”与“隐性担保性”。广告荐证的效果原理包括来源可信性理论、来源吸引力理论以及意义迁移理论。广告荐证具有传递商业信息、引起受众注意、强化受众信赖等功能。对于广告荐证以及虚假荐证的认定,应从有利于消费者的角度进行判断：坚持一定的客观标准,兼采合理人的主观标准。广告荐证法律关系是广告荐证关系在广告荐证法律规范上的具体表现,是一种典型的多向法律关系。广告荐证者既不是广告表演者与广告主的雇佣者,也不是我国法律意义上的代理人与担保人,而是负有保证广告荐证内容真实义务的“隐性担保人”。在广告荐证法律关系中,荐证者要承担如实荐证的法定义务,消费者因此而享有知情的权利。我国乱象丛生的广告荐证现状需要法律的刚性规范。荐证广告的庞大规模以及“荐证门”事件的频繁发生为广告荐证的法律规制提供了现实基础。广告荐证对于消费者的消费决策会产生重要影响,而违法荐证则具有严重的社会危害性,这为广告荐证的法律规制提供了法理基础。关于广告荐证的行为规范。广告荐证应遵循真实、合法、诚实信用、社会责任、共同但有区别的责任等基本原则,其中尤以真实性原则为其根本。在广告荐证中,广告荐证者的身份确认是进行广告荐证法律规制的基本前提。如实荐证应成为广告荐证者最基本的行为规范。如果广告明示或者暗示广告荐证者使用了荐证产品,那么其必须是该产品的真实使用者,否则就应该在广告中明示其并非真实使用者,或是明示广告为表演广告。如果在广告主和广告荐证者之间存在一种足以影响荐证的重要性和可信度而又不能为消费者所合理推断的实质性关系,则这一关系必须予以披露。如果广告明示或者暗示广告荐证者是其所荐证商品或服务领域的专家,那么其必须符合专家的条件并拥有与广告荐证相关的专业知识。广告荐证者在进行广告荐证之前,应履行必要的广告审查义务。广告主负有如实使用、证实、确认、监督广告荐证等义务。广告主应对广告荐证者作出的虚假或引人误解的陈述承担责任,广告荐证者也应对广告荐证的真实性承担责任。鉴于医药广告中疗效体验的个体性与不确定性,考虑到我国当前的广告法制环境,医药广告中应禁止通过广告荐证进行效验宣传。对广告荐证行为进行充分的保护与必要的限制同样重要。就广告荐证与广告表演的关系而言,广告荐证是一种真实的广告“表演”。关于广告荐证的责任解构。学界对于广告荐证者是否应承担广告荐证责任主要有“肯定说”与“否定说”两类观点。本文认为广告荐证者的违法荐证符合法律责任的构成要件,没有不承担责任的理由。广告荐证责任的法理依据在于对消费者信赖利益的保护以及对广告荐证者虚假陈述行为的约束。对于广告荐证民事责任的性质,学界存在连带责任说、有限责任说、按份责任说、补充责任说、相应责任说以及区别责任说等多种观点。本文认为广告荐证民事责任的本质是一种连带责任,连带责任的基础源自共同侵权论,但令广告荐证者在仅存一般过失时也承担连带责任有失法律公允,此种情形下的广告荐证者应承担有限连带责任。学界对《食品安全法》第55条确立的食品广告中广告荐证民事责任归责原则的解读有较大分歧,而对于广告荐证民事责任的归责原则更是众说纷纭。本文认为广告荐证责任既不符合无过错责任设立的法律政策上的理由,也不具备适用无过错责任的客观基础,应适用过错推定责任归责。广告荐证者的主观过错应进行重大过失与一般过失的界分。对于故意的认定,应坚持主观判断标准,而对于过失的认定,应坚持客观判断标准,通过判断其是否违反相应的注意义务加以判断。对于广告荐证责任中因果关系的判断,应进行事实层面与法律层面的二元区分。判断违法荐证行为与消费者的损害结果之间是否具有事实上的因果关系,不能僵化地适用大陆法的“必要条件论”,应结合英美法的“实质要素论”加以判断。判断二者之间是否具有法律上的因果关系,应坚持相当因果关系说。同时,在广告荐证责任因果关系的链条中,不可缺少“信赖”考察的成分。有观点认为广告荐证民事责任不宜实行惩罚性赔偿,本文认为如将广告荐证领域完全排除在惩罚性赔偿范围之外不仅不符合实际法理,也不利于保护消费者的合法权益以及遏制违法荐证行为。本文主张广告荐证者承担民事责任的具体规则如下：广告荐证者存在故意与重大过失时,对外承担连带责任；存在一般过失时,对外承担有限连带责任,以不超过全部损害赔偿额的10%为宜；仅存轻微过失时,不承担法律责任。有观点认为产品代言连带责任的法律基础是产品责任,本文认为界定为广告责任更为妥当。有观点认为在广告荐证责任链条中,广告荐证者应承担次要责任,本文认为此种观点不能很好地解释存在主观联络的恶意侵权型的广告荐证。有观点认为追究广告荐证者的法律责任应以公法责任为主、私法责任为辅甚至不追究私法责任,本文认为广告荐证者的违法荐证行为与消费者的损害结果之间并不缺乏损害赔偿责任上因果关系的链条。有观点认为“荐证门”事件频发,负有行政监管职责的政府部门也应负连带责任,此种观点值得我们深刻反思。对于虚假广告与虚假荐证之间的关系,实践中我们经常将二者等而同之。实际上,我们应当将广告主的虚假广告责任与广告荐证者的虚假荐证责任区分开来,将不属于广告荐证者的责任回归至真正的责任主体-广告主,以还原广告荐证责任的本质。如果说,广告荐证者为广告主利益的代言人,那么,在其从事违法荐证侵害消费者权益乃至社会公共利益时,政府有义务作为消费者的代言人,追究违法荐证的行政责任。尽管实践中广告荐证者因违法荐证而获刑的可能性极小,但增加此类刑法规定的法律震慑意义重大。关于广告荐证法律规制的借鉴与完善。美国是世界上广告荐证法律规制最为规范的国家之一,其制定了世界上最早的广告荐证行为规范。充分保护消费者的合法权益是美国广告荐证行为规范最典型的特征,这也是美国广告荐证法律发展的基本趋势。美国法对于广告荐证的界定、广告荐证的认定标准、广告荐证的真实义务以及实质关系披露等等许多方面均值得我国借鉴。对于虚假荐证造成的损害,受害人可以获得衡平法、普通法以及成文法等多种渠道的法律救济,其司法实践中确立的虚假广告的直接参与责任与广告荐证责任的二元区分原则很值得我国借鉴。我国台湾地区也针对广告荐证行为制定了专门的行为规范,具有鲜明的美国法色彩,而在广告荐证的责任规制方面则呈现出典型的大陆法特征。我国台湾地区关于广告荐证的责任规制尤其值得我国内地(以下简称‘我国”)予以借鉴。我国关于广告荐证的法律规制存在法律体系庞杂繁琐、缺乏专门的法律规范；行为规范过于粗略、缺乏必要的规范指导；责任制度不尽完善等等诸多不足。其中,我国立法以虚假广告责任替代虚假荐证责任不尽科学,而《广告法》中对于个人荐证者广告荐证责任的规范缺失则是我国广告荐证立法的根本缺陷。同时,我国立法对于民事责任归责原则的态度表现得过于暧昧,而对于一般过失状态下的广告荐证者适用连带责任则显得过于严厉。此外,广告荐证行政责任与刑事责任的实质缺位也是需要引起我国立法者关注的问题。对于广告荐证的法律规制,我们应坚持消费者权益优先兼顾荐证者行为自由的价值取向,并至少实现权利救济、自由维护以及利益衡平三项功能。我们应区分虚假荐证责任与虚假广告责任,摒弃虚假荐证责任虚假广告说,规定个人荐证者的广告荐证责任,明确广告荐证责任的归责原则,针对不同的主观过错适用有区别的连带责任,有条件地适用惩罚性损害赔偿,严格限制公法责任尤其是刑事责任的适应。当务之急,我国应制定一部专门的《广告荐证行为规范》。就我国广告荐证的法律规制而言,借鉴其他国家或地区的立法经验,从根本上完善我国的广告荐证法律制度,彻底改善我国的广告法制环境,从而保护消费者的合法权益,并为广告荐证行为提供明确的行为规范,应成为今后我国立法者努力的方向。更多还原

【Abstract】 With the rapid development of our market economy, the endorsing advertisement (academic circles generally call an advertisement by a spokesperson or a testimonial advertisement) also gets into the prosperous period of development. Therefore, more and more persons follow the way to endorse in advertising. In recent years, many misleading or unsubstantiated endorsing advertisements have been exposed and the phenomenon of misleading endorsements has become an improper practice strongly complained by the whole society. Consequently, the litigations between consumers and endorsers often appear in various media reports. China hasn’t formulated specialized norms concerning the endorsements in advertising and the related rules are scattered. In a real sense, the codes of conduct about the endorsements are few. Compared with the United States and our Taiwan region, where there are more advanced rules and regulations, our legal system seems to fall behind. The "endorsing scandals" in China occurred repeatedly also exposed the systematic flaws of our legal regulations concerning the endorsements in advertising. Legislators should pay more attention to this issue. Under this background, aiming at following focuses:the basic issues of the endorsements in advertising, the behavior norms of the endorsements, the analysis of liability for the endorsements, and the reference and perfecting of the legal regulations concerning the endorsements in advertising etc., this dissertation would do deep and systematic research.In addition to introduction and conclusion, the paper totally is divided into four parts with 260,000 words.Firstly, it is concerning the basic issues of the endorsements in advertising. An endorsement in advertising is an advertising conduct by a party with his or her own name other than the advertiser who directly or indirectly recommends the product or service, or attests its quality, function and effect etc. to attract consumers, win their trust and persuade them to purchase the product or take a service. The endorsement has typical characteristics of "personality", "publicity and credibility" and "implicit guaranty" as well. The effective principles of the endorsements include the source credibility theory, the source attractiveness theory and the meaning transfer theory. The endorsements have functions to deliver business information, attract public attentions and enhance public trust and so on. The recognition of the true or deceptive endorsements should be beneficial to consumers:(1) insist on objective standard; and (2) adopt subjective standard of the reasonable person. The legal relationship of the endorsements is the specific performance that the relationship of the endorsements in advertising is reflected from the legal norms on the endorsements. It is a typical many-sided legal relationship. An endorser is neither an advertising performer or an employee of an advertiser, nor an agent or a guarantor under the law. In fact, the endorser is a party who is responsible for the truth of the representations in advertising as a "implicit guarantor". The endorser must undertake the legal obligations to make true endorsements and the consumer consequently has the right to learn the truth. Facing to the endorsements in advertising in great confusion in China, the rigid clauses are needed. The large scale of the endorsements in advertising and the frequent occurrence of "endorsing scandals" provided a realistic foundation for the legal regulations. The misleading endorsements will produce seriously social harm, while the consumptive decision of consumers will be influenced seriously by the endorsements. These facts provide a jurisprudential foundation for the legal regulations.Secondly, it is concerning the codes of conduct of the endorsements in advertising. The endorsements should comply with principles as follows:authenticity, legitimacy, good faith, social responsibility, common but distinguishing responsibility etc.. Among them the authenticity principle is even the most fundamental. The identity confirmation of an endorser is the basic premise for the legal regulations. To give a true endorsement should be the most fundamental criterion of the endorser. When the advertisement expresses or implies that the endorser uses the endorsed product, the endorser must have been a bona fide user, or the advertiser should clearly disclose that the endorser is not an actual consumer of the product, or explicitly instruct that the advertisement is only for performance. When there exists a connection between the endorser and the advertiser that will materially affect the weight or credibility of the endorsements and that can not be inferred reasonably by the consumer, such connection must be fully disclosed. Whenever the advertisement represents, directly or by implication, that the endorser is an expert in the area of the endorsed product, then the endorser’s qualifications must in fact give the endorser the expertise that he or she is represented as possessing with respect to the endorsements. It is necessary for the endorser to be liable for the investigations of the advertisement before he or she makes an endorsement. Moreover, the advertiser is liable for the honest use, confirmation and supervision of the endorser’s endorsements. The advertiser is subject to liability for misleading or unsubstantiated representations made by the endorser and the endorser is also liable for the authenticity of the endorsements. In consideration of the individual difference of the experience of curative effect and uncertainty itself, furthermore, regarding of our current deficient advertising legal system, the curative effect of medicine products in the medical advertisements should be prohibited to disseminate through the endorsements. To protect the conduct of the endorsements in advertising strongly is as important as to restrict it essentially. Concerning the relationship between the endorsement and the performance in advertising, the endorsement is a true "performance" in advertising.Thirdly, it is concerning the liability analysis of the endorsements in advertising. As for the issue whether the endorser should be liable for his or her illegal endorsements, the academic circles mainly have two standpoints of "affirmation theory" and "negation theory". This paper holds that as long as the illegal endorsements conform with constitutive requirements of the liability, the endorser has no reason to succeed in evading it. The legal basis of the liability for the endorsements lies in the protection to the trust benefits of consumers and the restraint to the deceitful representations of endorsers. Concerning the nature of the civil liability for the endorsements, academic circles have some theories as follows:joint liability, limited liability, several liability, supplementary liability, correspondent liability and different liability and so on. This paper holds that the essence of the civil liability for the endorsements is a joint liability and the joint foundation lies in the theory of contributory torts. However, it is unfair for the endorser to be subject to joint liability for his or her mere general negligence. In this circumstances the endorser should bear the limited joint liability. As for the understanding of the criterion of liability about the civil liability for the endorsements in food advertisements established by section 55 of Food Safety Law of PRC, there are great differences at academic circles. And the arguments concerning the criterion of liability about the civil liability of the endorsements are more complicated. According to this paper, the liability for the endorsements neither conforms with the reasons of related legal policy created by no-fault liability, nor possesses the objective basis for it. In my opinion, it is suitable for the presumption of fault. It is necessary to divide the endorser’s subjective faults into gross negligence and general negligence. To determine the intention of the endorser we should insist on the subjective standard of judgment. However, to determine the endorser’s negligence we should persist in the objective standard of judgment through judging whether the endorser violates the relevant obligations of care. As for the determination of the causation of the endorser’s liability, to distinguish between the causation in fact and the causation in law is necessary. We shouldn’t rigidly apply with the "indispensable conditions theory" of the continental law to judge whether the causation in fact exists between the illegal endorsements and the damages of consumers. On this point, the "material factors theory" of the Anglo-American law also should be considered. While judging whether it has the causation in law between the illegal endorsements and the damages of consumers, it is necessary to insist on the relative causation theory. Moreover, under the chains of the causation, it is essential to observe and study factors of "trust". Some arguments state that it is not suitable to apply the punitive damage to the civil liability for the endorsements. This paper, however, holds that it is neither conformable to the real jurisprudence nor useful to protect consumers’interests and restrain the illegal endorsements if the punitive damage is totally eliminated from the range of the endorsements in advertising. The specific rules that the endorser is liable for the civil liability are as follows:whenever the endorser has intention or gross negligence, he or she should be liable for the joint liability; if the endorser has general negligence, for the limited joint liability that is not more than 10% of the total damages; if the endorser has slight negligence, for no liability. Although some comments argued that the legal foundation of the joint liability is the product liability, this paper, however, holds that it is more reasonable to look it as the advertising liability. Some arguments state that under the chains of the liability the endorser should bear the secondary liability while his paper holds that these arguments could not explain reasonably that the malicious torts through the subjective contacts do exist in the endorsements in advertising. Some arguments state that to investigate the endorser’s legal liability should emphasize the priority of public law liability, then the subsidiary of private law liability or even without. However, this paper holds that there is positive connection of the causation upon the liability of damages between the illegal endorsements and the consumer’s damages. Other points argued that since the "endorsing scandals" happened repeatedly, the related government departments which are in charge of administrative supervision should be liable for the joint liability as well. These points are worth introspecting for us. And the relationship between false advertisement and false endorsement is often regarded as the same in practice. In fact, it is essential to distinguish the endorser’s liability for false endorsements from the advertiser’s liability for false advertisements. We should make the really liable person, advertiser, undertake the liability for false advertisements that should not be held by the endorser to revert the nature of the endorser’s liability. If an endorser is a spokesperson on behalf of the advertisers’interests and when the endorser is engaged in illegal endorsements and thus infringed the consumers’ interests and even the social public interests, the endorser should be prosecuted for the administrative liability for it by the government who has the obligations to be the spokesperson of the consumers. Although in practice the possibility that an endorser’s illegal endorsements will be punished through the criminal liability is very little, it is significant to increase deterrence of this kind of criminal regulations.Fourthly, it is concerning the issue to draw lessons from other countries or regions and to improve our legal regulations concerning the endorsements in advertising. The America is one of countries whose legal regulations concerning the endorsements in advertising are the most complete in the world. It drew up the earliest Guides Concerning Use of Endorsements and Testimonials in Advertising whose most typical feature is to fully protect the interests of consumers, which is also the important tendency for the legal system’s development of America. Specially, the regulations concerning the definition of the endorsements, the standard of recognizing endorsements, the obligations of authenticity for endorsements and the disclosure of material connection in the endorsements and so on in American law are worth learning for us. As for the injury by the misleading endorsements, the sufferers can acquire legal relieves from equity law, common law and statutory law. It is necessary for us to learn from American dualism doctrine to distinguish the direct participant liability for false advertisements from the liability for false endorsements. Moreover, our Taiwan region also stipulated its own codes of conduct concerning the endorsements in advertising. The codes have typical features of the American law, but in the aspects of the liability for the endorsements the codes express the typical characteristics of the continental law. Its regulations of the liability for the endorsements in advertising are especially worth learning for Mainland region. Compared with the United States and our Taiwan region whose legal regulations are very complete, the main problems of the legal regulations in Mainland region are that the legal system is multifarious and disorderly and the specialized norm is absent; the codes of conduct are sketchy and the necessary guides of conduct are inefficient; the liability system is not complete and so on. Especially speaking, the fundamental defect of our legislations is that the personal endorser’s liability for endorsements under the Advertising Law of PRC is absent and it is also unscientific to use the liability for false advertisements as a substitute for the liability for false endorsements. Furthermore, the attitude to the criterion of liability of the civil liability in our legislations is kind of ambiguous. Comparatively, the application of the joint liability for the endorser with the general negligence could be too strict. In addition, our legislators need to pay more attention to the substantial vacancy of administrative liability and criminal liability for the endorsements in advertising. On the legal regulations concerning the endorsements in advertising, we should insist on the value tropism that consumer’s rights are prior to the endorser’s freedom of conducts, and we should carry out three legal functions at least:remedying right, keeping freedom and balancing benefits. We should distinguish the endorser’s liability for false endorsements from the advertiser’s liability for false advertisements and refuse the theory that the liability for false endorsements is equal to the liability for false advertisements. Furthermore, we should formulate the personal endorser’s liability for the endorsements, make the the criterion of liability clear, apply the distinguished joint liability for the endorsements to different subjective faults, conditionally apply the punitive damages and strictly limit the application of public law liability, especially the criminal liability. As a pressing matter for the moment, a special Codes concerning Endorsements and Testimonials in Advertising should be enacted as soon as possible.In conclusion, regarding our legal regulations concerning the endorsements in advertising, our legislators should learn legislative experience from other countries or regions and complete our legal system on the endorsements in essence and totally improve the legal environment for advertisements for the purpose of the protection of consumer’s interests and providing explicit behavior guides for the endorsers in advertising.更多还原