绝对化用语广告过罚失当问题研究

2015年《广告法》修订后,对于绝对化用语广告处罚是否过罚失当引发争议。由于该类行为扰乱了市场秩序,损害了消费者和竞争者的合法权益,故应当受到法律规制。但是,关于如何确定罚款数额的问题,国家有限干预、经济公法等理论均无法清晰地予以解答。基于行政违法行为过罚相当原则的考量,建议从以下方面修改完善绝对化用语广告惩处制度:适度降低绝对化用语广告的起罚点,并增设"警告"条款;采取"销售额罚款"和"定额罚款"并存的处罚方式;统一广告监管执法中的裁量基准。

A Study on the Improper Penalty Imposed Against the Misconduct of Absolute Advertising Words

Since the amendment of the Advertising Law in 2015,there has been a debate on whether the conduct of using absolute wording by an advertiser is improperly punished.Because such acts have disrupted the market order and damaged the lawful rights and interests of both the consumers and competitors,they should be regulated by the law.However,concerning the issue of how to confirm the amount of the fines,theories,such as the limited state intervention and the"Public Law on Economics"can not specifically address this issue.Based on the consideration of applying the principle of imposing proper penalties against misconducts to unlawful administrative acts,it is suggested that the system of the penalties against absolute advertising wording should be amended and perfected from the following aspects:the criteria of the punishable absolute advertising wording should be lowered down appropriately and"warning provision"should also be added;a penalty featuring the coexistence of"sales amount based fine"and"fixed amount fine"should be adopted;the benchmark of discretion in enforcing the law for the regulation of advertisement should be unified.