Court JurisprudenceAdvertising expenses are not fully listed on the financial vouchers, the vouchers provided can not accurately reflect the advertising expenses, belong to"Advertising costs cannot be calculated or are significantly low"

[Summary of the trial]

In this case, the above-mentioned behavior of the applicant constitutes the act of publishing false advertising, the applicant's advertising expenses are not fully listed on the financial documents, and some advertising expenses are paid through other accounts, some of the expenses are paid by others, the vouchers provided by the applicant can not accurately reflect the expenditure of advertising expenses. Longyan City Bureau of Industry and Commerce identified the applicant as belongingIn cases where "advertising costs cannot be calculated or are significantly low", an order shall be made to stop advertising, eliminate the impact and impose a fine45The administrative penalty of 10,000 yuan shall be appropriately discretionary.

Referee's Instrument

Fujian Provincial High People's Court

Yes. Political. Cut. set Book.

(2019)I'm in the business of applying309number

Retrial applicant (plaintiff in first instance, appellant in second instance) Gutian Red Education Service Center, Fujian Province, Victory Avenue, Gutian Town, Shanghang County, Fujian Province1The first floor of the Plum Building of Gutian Mountain Village.

Huang Yongzheng, legal representative, chairman.

The respondent (defendant in the first instance and appellant in the second instance) Longyan City Market Supervision Authority, where he resided in Jinji West Road, Xin Luo District, Longyan City, Fujian Province2number.

Legal representative Lu Chunping, Secretary.

The respondent (defendant in the first instance and appellant in the second instance) is the Fujian Provincial Market Supervision Administration, and the residence is Hualin Road in the Gulou District of Fuzhou City, Fujian Province147number.

Legal representative Huang Peihui, Secretary.

The retrial applicant, Gutian Red Education Center of Fujian Province, was not convinced by the case of industrial and commercial administrative punishment of Longyan Municipal Administration for Industry and Commerce (hereinafter referred to as Longyan Municipal Bureau of Industry and Commerce) and administrative reconsideration of the Fujian Provincial Administration for Industry and Commerce (hereinafter referred to as Fujian Provincial Bureau of Industry and Commerce) (2018I don't know08End of line123administrative judgment, to apply to this court for retrial. The court formed a d'hearing in accordance with the law to examine the case. Due to institutional reform, the authority of the Longyan Municipal Bureau of Industry and Commerce is inherited by the Longyan Municipal Market Supervision Bureau, and the authority of the Fujian Provincial Bureau of Industry and Commerce is inherited by the Fujian Provincial Market Supervision Administration, so the Lilongyan Municipal Market Supervision Bureau and the Fujian Provincial Market Supervision Administration are the respondents in this case. The case has now been reviewed and closed.

Retrial applicant Gutian Red Education Service Center in Fujian Province applied for retrial, saying that the original trial judgment did not comprehensively, objectively and impartially examine the legality of the administrative acts involved in the case, resulting in errors in the decision, which should be corrected in accordance with the law. The main reasons are: First, the original trial violated the legal procedures, may affect the fair judgment. During the administrative proceedings in this case, the court of first instance put forward a guiding opinion to the Longyan Municipal Bureau of Industry and Commerce, which did not take the initiative to avoid, clearly violated the legal procedure, and the judgment should be set adone. 2. The main evidence of the facts found in the original trial judgment is insufficient, and the punishment procedure in the case is seriously illegal. During the second instance of the case, the evidence provided by the applicant can be substantiated"Longyan City cadres education red training base construction working group" was referred to as "Red Office", and the original trial court did not verify. The original judgment found that the applicant's false advertisement was a factual error and that the evidence was obviously insufficient. Longyan City Bureau of Industry and Commerce through correspondence to the relevant units to obtain testimony and used in the facts of the case, there is no legal basis, the procedure is seriously illegal. With regard to the time limit for the investigation and prosecution of the case, the original trial adopted approval materials unrelated to the case, and denied the application of the Fujian Provincial Administrative Law Enforcement Procedure Provisions in the present case on the principle of "procedure from the new", and oversethered its authority to deal with conflicts of laws. Longyan City Bureau of Industry and Commerce first collective discussion after the hearing, the procedure is seriously illegal. Fujian Provincial Bureau of Industry and Commerce can not prove that there are more than two staff members to participate in the review, and the original trial "deputy inspector should not sign the approval, there is no legal basis" point of view, is a strong argument. Third, the original judgment of the applicable law errors. The applicant does not promote and introduce the content of the services provided by himself in the "About Us" section of the website, and the services provided by the applicant are not for profit, so the applicant's promotional services are not subject to advertising laws. Regarding the expression of "belonging to the Red Office and being in charge of government departments", the evidence of the screenshot of the web page cannot be used as the basis for the final decision because of the illegality of the evidence-taking procedure, and the applicant hired Zeng Guangrong as Deputy Secretary-General of the National "Red Office", the applicant and the State "Red Office" are inextricably linked, as for the "government director", because the Fujian Provincial Civil Affairs Department is the applicant's establishment approval and business authority, "government director" is an objective statement. Regarding the issue of "using the name or image of state organ staff" for publicity, Longyan City Bureau of Industry and Commerce through correspondence to collect evidence, evidence method is illegal, involved in the case of three state staff member one suspended, one should not be identified as a state agency staff member, and the portrait of the relevant personnel, the introduction does not appear on the applicant's service content page, the introduction and content does not involve the recommendation of the service content, so the law can not be identified as the use of state agency staff name and image for commercial advertising. With regard to the question of whether the penalty discretion is appropriate, the original examination found that the applicant's advertising expenses were not listed on the financial documents, and that some advertising fees were paid through other accounts, without any factual basis. To sum up, the request to revoke the original second instance judgment in accordance with the law, and to change the judgment in support of the applicant's first instance litigation request, the first and second instance litigation costs in this case shall be borne by the respondent.

The Court considers that Article 2, paragraph 1, of the Advertising Law of the People's Republic of China provides:"Within the territory of the People's Republic of China, this Law applies to commercial advertising activities in which commodity operators or service providers directly or indirectly introduce the goods or services they promote through certain media and forms."In this case, the applicant for profit, through its own website, WeChat public number and other media, the use of image introduction, teacher publicity, activity display and the publication of various set-up arrangements and contact information, directly or indirectly introduced their own training and education services, the applicant introduced their own marketing services with commercial advertising attributes, should be subject to the People's Republic of China Advertising Law adjustment.The applicant's claim that he is not promoting and introducing the contents of his services and that the services he provides are not for profit is not true and cannot be justified.

Article 28 of the Advertising Law of the People's Republic of China stipulates:"If an advertisement deceives or misleads consumers with false or misleading content, it constitutes a false advertisement. In one of the following cases, false advertising:... (5) Other circumstances in which consumers are deceived or misled by false or misleading content. "In this case, the applicant publicly used the name of the "Red Gutian Training Center in Longyan City" and "the organizer" on its own website:Longyan City Party members and cadres red education and training network, "under the Red Office, by the head of government departments" and other written content, and "Longyan City Red Gutian Training Center", "Longyan City Party members and cadres red education and training network" does not exist, the applicant and the National Red Tourism Coordination Group set up an office (for short, "Red Office") has no affiliation, it is a private non-enterprise units rather than "government department heads", so the applicant published ads to false or misleading content. constitutes false advertising. The applicant, on the grounds of his employment of Zeng Guangrong' identity, position, etc., considers that he belongs to the "Red Office" and, on the grounds that he was registered by the Fujian Provincial Civil Affairs Department to set up and conduct business management, he considers that it is not improper to claim that the government is in charge, and that his claim is unseeded by law and does not support it.

Article 9 of the Advertising Law of the People's Republic of China stipulates:"Advertising must not be in the following circumstances: ... (2) The use or disguised use of the name or image of the staff of state organs or state organs. "In this case, the applicant in its self-built website for its business courses and teachers in the publicity and introduction, claimed that the Longyan Municipal Committee Propaganda Department Fu Yusheng, Longyan Municipal Commission for Discipline Inspection Huang Keshui comrade (although the comrade in the applicant's advertising period did not rearrange the job, but his status as a state organ staff has not been lifted), Longyan Municipal Committee Party School Wang Weimei and other state organs staff for their teachers, and the relevant resume displayed on its website, compositionThe act of "advertising in the name and image of a staff member of a State organ".

In accordance with the provisions of Article 55 of the Advertising Law of the People's Republic of China, if a false advertisement is published, the administrative department for industry and commerce shall order it to stop publishing advertisements and order the advertiser to eliminate the influence within the corresponding scope, and if the advertising expenses cannot be calculated or are obviously low, he shall be fined between 200,000 yuan and 1 million yuan.In this case, the above-mentioned behavior of the applicant constitutes the act of publishing false advertising, the applicant's advertising expenses are not fully listed on the financial documents, and some advertising expenses are paid through other accounts, some of the expenses are paid by others, the vouchers provided by the applicant can not accurately reflect the expenditure of advertising expenses. Longyan City Bureau of Industry and Commerce identified the applicant as belongingIn cases where "advertising costs cannot be calculated or are significantly low", an order shall be made to stop advertising, eliminate the impact and impose a fine45The administrative penalty of 10,000 yuan shall be appropriately discretionary. In accordance with the provisions of Article 57 of the Advertising Law of the People's Republic of China, an advertisement for the use or disguised use of the name or image of a staff member of a state organ is not yet serious and the advertiser shall be fined between 200,000 yuan and 1 million yuan. In this case, the Longyan Municipal Bureau of Industry and Commerce ordered the applicant to stop publishing advertisements in the name or image of state agency staff in disguise and imposed a fine30Ten thousand yuan of punishment, the amount of punishment is appropriate.

For the applicant's letter inquiry and evidence, Longyan City Bureau of Industry and Commerce in accordance with the needs of handling the case, to the relevant units of the letter to collect evidence, with a certain amount of proof, there is no improper. The question of the time limit for handling administrative penalties raised by the applicant shall be based on2007Years.10Month.1The provisions of Article 57 (1) of the Provisions on Administrative Punishment Procedures of the Administrative Administration for Industry and Commerce, which have been implemented since the date and are specifically regulated for administrative punishment by the administrative organs for industry and commerce, shall be extended by the person in charge of the organ before the expiration of the time limit for handling the case30after discussion and decision to extend360extending the time limit procedure for handling cases is lawful. offIn the applicant's proposed Longyan City Bureau of Industry and Commerce to make the administrative penalty decision in this case first collective discussion after the hearing, because the applicant in the hearing procedure put forward the views and issues in the previous Longyan City Bureau of Industry and Commerce in the trial meeting have been discussed, although the hearing after the collective discussion, procedural flaws, but the applicant's substantive and procedural rights have not had a material impact, the applicant believes that the issue of collective discussion after the hearing seriously deprived of their legitimate rights and interests, the law is not supported.Therefore, in the process of making the decision on administrative punishment in this case, the Longyan Municipal Bureau of Industry and Commerce conforms to the legal procedures by filing a case, investigating and collecting evidence, informing the facts, reasons and basis of the proposed punishment, as well as the relevant rights and obligations, holding a hearing, making a decision on administrative punishment in accordance with the law and serving the decision on administrative punishment.

After accepting the application for administrative reconsideration submitted by the applicant, the Fujian Provincial Bureau of Industry and Commerce shall issue a reply notice to the Longyan Municipal Bureau of Industry and Commerce, and after examination and processing, make an administrative reconsideration decision to uphold the above-mentioned administrative penalty decision within the statutory time limit, and serve the administrative reconsideration decision in a timely manner, and the administrative reconsideration decision shall be lawful. There is no legal basis for the applicant's claim that the Fujian Provincial Bureau of Industry and Commerce cannot prove that more than two staff members participated in the review, because the signature of the handling personnel is an internal material issue and does not affect the legal effect of the decision on external administrative reconsideration, and there is no legal basis for the applicant's claim that the deputy inspector should not issue an administrative review decision.

In summary, the applicant's claim for revocation of the administrative penalty decision and the administrative reconsideration decision cannot be established, the original first instance judgment rejected his claim, and the second instance judgment was upheld, and there was no impropriety. The original court of second instance put forward by the applicant put forward guiding opinions on the Longyan Municipal Bureau of Industry and Commerce in the administrative procedure, and did not take the initiative to avoid hearing the case as a procedural violation, without facts and legal basis, which could not be established. Therefore, the reasons for the applicant's application for retrial cannot be established, and if the application for retrial does not comply with the provisions of Article 91 of the Administrative Procedure Law of the People's Republic of China, it shall be rejected in accordance with the law. Accordingly, in accordance with the Supreme People's Court on the application<Administrative Procedure Law of the People's Republic of China>The provisions of article 116, paragraph 2, of the Interpretation shall be as follows:

Rejected the application for retrial of the Gutian Red Education Center in Fujian Province.

Judge Lin Ai-chin

Judge Shi Weichao

Acting Judge Huang Jiming

October 21, 2019

Bookkeeper Chen Meiming