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Tort Liability Study of False Advertising

Author: WangHuan
Tutor: LvYanFeng
School: Jilin University
Course: Law and Economics
Keywords: false advertisement law infringement liability compensation principle
CLC: D923
Type: Master's thesis
Year: 2011
Downloads: 166
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Abstract

Since the new century, the advertisement industry in china has developed unprecedented. The prosperity of Advertising has promoted dissemination of information, driven GDP growth, promoted social and economic development as well as played a good role in promoting employment. However, with the rapid growth, more and more false advertisement in various fields has become the major problem which troubles the industry. Aiming at the governance of the false advertisements, china has issued < advertisement law>,<consumer right protection law> and other law and regulations which are involved with the punishments of false advertisements and china also introduced a punitive damages in <tort liability law> which was enforced in July the first, 2010.Nevertheless, compared with full penalties of law of false advertisement governance in developed country, china’s law and regulation system has a bid leak in this field: firstly, china do not has a clear definition standard of“false advertisement”. In western world, though they have different point of emphasis in the definition of false advertisements, distinguishing them into fraud type and misleading type, they have a clear standard in general which bring an easy judgment. However in china, only a few governmental reply documents have involved the concept and the definition of false advertisements have never appeared in any law or regulations; Secondly, the subject of infringement of liability is not clear: first, the absence of specific standard of taking duty of liability of subjects, second, the level of infringement compensation is too low and the Compensation For Mental Loss has not been included; Third, we are lack of power in the administration of the advertisement in new media. In general the major problem is that the governance power is not adequate and the administrative system is far from perfection.Aiming at solving the existing problems, this thesis try to jump out of the traditional law perspective in analyzing false advertisements, instead it seeks for the rational Principia of Liability of infringement and effective compensation method of the subject f infringement of false advertisements so as to provide a new angle in the governance of false advertisements.This thesis introduces the minimal analysis of the social expected overall cost and discuss the Principia of Liability of infringement and the draws the conclusion that only when the practical preventive level equals to the effective preventive level, can the advertisement achieve the minimum social expected overall cost. Then it makes a economic analysis of three Principia of Liability of infringement: strict liability, irresponsibility and fault liability, which draws a conclusion that the sponsor should take the strict liability and the other subjects of infringement should take fault liability. Following the discussion of Principia of Liability of infringement, the thesis makes a further analysis of the principle of compensatory compensation and the principle of punishment compensation, explaining the limitation of the adaptation of principle of compensatory compensation and the necessity of the adaptation of the principle of punishment compensation. Meanwhile, reviewing the experience of the false advertisement governance of other countries, the writer suggests that when we focus on the construction of the law system, we should also enhance the work of construct better social environment, promote the establishment and development of the self-governance organizations, set up a multi level censor system, set up a better public opinion supervision system as well as increase the participation of the consumers.The writer of this thesis applies various theory modes in law and economics and abides by the reality and novelty seeking principle to analyze the false advertisement issues in china with the hope of contributing strength in china’s legal construction by proposing policy suggestion of perfecting the existing law on false advertisements governance.

Tort Liability Study of False Advertising

Abstract

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