Dot the blue letter above"Quality cloud"Focus on microscopy

In this case, the respondent has played the role of advertiser, advertising operator and advertising publisher, and he was unable to provide the bill of advertising expenses during the respondent's legal investigation, and only admitted that more than 10,000 yuan of advertising expenses and lack of valid evidence to prove it, it is a cover-up of his own illegal acts, to evade legal responsibility.

In the present case, because the Internet is a kind of border-bound, fast dissemination, wide dissemination, therefore, the appellant's violation of the law is minor, no harmful consequences require light or mitigating administrative penalties of the grounds of appeal can not be established, the Court does not support.

Original review, May 19, 2017, the first defendant received the second defendant Guyuan City Market Supervision Administration advertising case transfer letter (2017 No. 02), the transfer letter transferred to the Autonomous Region Bureau of Industry and Commerce advertising violation case transfer Notice (No. 25 of 2017) "Guyuan Concord Hospital suspected of publishing Internet false advertising cases" notice, and on May 20, 2017, the plaintiff Guyuan Concord Hospital suspected of publishing false Internet advertising investigation.

Through the investigation of the first defendant,The plaintiff, Guyuan Concord Hospital, claimed via the Internet that it was a "Technical Collaboration Unit of Xijing, Jiaoda Annex Hospital", advertised by means of the character of Lang Yongxuan, a former CCTV newscaster, CCTV news, and rational optimization of medical resources, and hung the "Technical Collaboration Unit" and "Technical Cooperation Unit" of Xijing Hospital in a prominent position in the hospital hall(The plaques are displayed in February and May 2013).

However, after investigation by the defendant, the First Affiliated Hospital of the Fourth Military Medical University (Xijing Hospital) and the First Affiliated Hospital of Xi'an Jiao Jiao University issued written certificates to the defendant on June 1 and 2, 2017, confirming that they had no cooperative relationship with the plaintiff.

The plaintiffs have accepted the above-mentioned illegal facts and have no objection.

On August 15, 2017, the first defendant informed the plaintiff in writing of the facts, reasons, grounds and penalties to be imposed on the administrative penalty and informed the plaintiff of his right to make a statement, plead and request a hearing.

On September 5, 2017, at 9:00 a.m., the first defendant, at the request of the plaintiff's hearing, held an administrative penalty hearing in the third floor conference room of the defendant's office in the case of the plaintiff's false advertising on the Internet.

On September 13, 2017, the first defendant, in accordance with Article 55 of the Advertising Law of the People's Republic of China,The Administrative Penalty Decision No. 006, which is fixed by the Opening Office of the People's Republic of China, orders the plaintiff to stop publishing false advertisements, eliminate the effects, and imposes an administrative fine of 200,000 yuan, which shall be served on the plaintiff in accordance with the law.

The plaintiff, in rejecting the decision on punishment, filed an application for reconsideration with the second defendant.

After review, the second defendant held that the administrative penalty decision made by the first defendant was clear in fact, the evidence was conclusive, the procedure was lawful, the applicable law was correct, and the appropriate handling was made on November 24, 2017.

It was also established that the plaintiff had been unable to provide invoices for advertising expenses during the first defendant's investigation, at the hearing and during the application for reconsideration.

According to the original trial, the defendant Guyuan Municipal Market Supervision Bureau Development Division, in accordance with the provisions of Article 55 of the Advertising Law of the People's Republic of China, imposed administrative penalties on the plaintiff Guyuan Concord Hospital, the facts are clear, the evidence is conclusive, and in strict accordance with the administrative punishment procedure to protect the plaintiff's right to state, the right to defend and the right to hear, the procedure is lawful.

The defendant, Guyuan Municipal Market Supervision Authority, did not improperly uphold the decision.

The plaintiff hung the plaques of "Technical Collaboration Unit" and "Technical Cooperation Unit" of Xijing Hospital of Xi'an Jiao university in a prominent position in its hospital hall, and claimed on the Internet that it was a "Technical Collaboration Unit of Xijing, Jiaoda Annex Hospital", and carried out false advertising by means of the character image of Lang Yongxuan, the former CCTV newscaster, CCTV news, and the rational optimization of medical resources.

The plaintiff said that when the defendant launched an investigation into it, it promptly removed the relevant content posted on the Internet, and actively removed the relevant billboards hanging in the hospital, and was able to actively cooperate with law enforcement officials in the relevant inspection and treatment.

And the plaintiff's illegal act is minor, did not cause harmful consequences, the request from the light or reduced administrative punishment this court does not support.

In summary, in accordance with the provisions of Article 69 of the Administrative Procedure Law of the People's Republic of China, the judgment rejected the plaintiff's claim for Guyuan Concord Hospital.

The case acceptance fee of 50 yuan, by the plaintiff Guyuan Concord Hospital to bear.

The plaintiff of the appellant, Guyuan Concord Hospital, appealed that: First, the request to revoke the original state district people's court of Guyuan City on April 25, 2018 (2017) Ning 0402 line 131 administrative judgment;

Facts and reasons: First, the court of first instance found that the facts are wrong, insufficient evidence, resulting in a wrong judgment.

The court of first instance found that "the plaintiff hangs the plaques of the "Technical Cooperation Unit" and the "Technical Cooperation Unit" of Xijing Hospital of Xi'an Jiao university in the lobby of his hospital hall, and claims on the Internet that it is a "Technical Cooperation Unit of Xijing, Jiaoda Annex Hospital", and that false advertising, CCTV news, rational optimization of medical resources and other means by means of the former CCTV news broadcaster Lang Yongxuan, is found to be insufficient.

This is because the appellant's hanging of plaques and Internet publicity only shows that there is technical cooperation with other units and does not seriously exaggerate his technical level, and the appellant because of the geographical reasons, access to the card information is small, the role of network publicity is very small, the above-mentioned acts have been corrected in a short period of time, has not caused serious consequences, not in line with the serious circumstances.

Second, the court of first instance tried the applicable law errors, resulting in errors in judgment.

After hearing the case, the court of first instance found that "the defendant Guyuan Municipal Market Supervision Bureau Development Division, in accordance with the provisions of Article 55 of the Advertising Law of the People's Republic of China, imposed administrative penalties on the plaintiff, the facts are clear, the evidence is conclusive, and in strict accordance with the administrative punishment procedure to protect the plaintiff's right to state, the right to defend and the right to hear, the procedure is lawful." The defendant, Guyuan Municipal Market Supervision Authority, did not improperly uphold the decision. "The determination is an error in the application of the law.

Because the relevant billboards hung by the appellant in the hospital are not long, but only for a short period of time, and the hospital issued a minor advertising act that does not comply with the provisions of the advertising law was examined by the appellant law enforcement officers, the appellant promptly revoked the relevant content posted on the Internet, but also actively removed the relevant billboards hanging in the hospital, and can cooperate with the relevant inspection and treatment of law enforcement officials, and the appellant's illegal acts are minor and timely correction, without causing harmful consequences, To the patients and the masses of the people have not caused a certain adverse impact,In accordance with the provisions of Article 27 (1) (1) of the Administrative Punishment Law of the People's Republic of China that the illegal acts that voluntarily eliminate or mitigate the harmful consequences of illegal acts and that the violations stipulated in paragraph 2 are minor and promptly corrected, and if they do not cause harmful consequences, the appellant shall, in accordance with the law, lightly or lightly reduce the administrative punishment or make warning and criticism education, and shall not be administratively punished.

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 in violation of the provisions of this Law, the administrative department for industry and commerce shall order it to stop publishing advertisements, order the advertiser to eliminate the impact within the corresponding scope, and shall be fined three times or less than five times the advertising cost, and if the advertising cost cannot be calculated or is obviously low, it shall be fined between 200,000 yuan and 1 million yuan.

The appellant's advertising fee can be calculated and not significantly lower, and even if the penalty is to be imposed, it should be three to five times the advertising fee, rather than a penalty of 200,000 yuan.

In summary, the facts of the first instance judgment are not clear, the applicable law is wrong, in order to safeguard the legitimate rights and interests of the appellant, specially filed an appeal, hope that your court in accordance with the law to hear, support the appellant's appeal request.

The Economic Development Division of the Market Supervision Administration of Guyuan City, the appellant, argued that: First, the respondent was subject to an objective, fair and comprehensive investigation of the respondent's illegal acts ex of office, the procedure was lawful, the facts were found to be clear, the evidence was sufficient, the applicable law was correct, and the results were appropriate.

Therefore, the court of first instance found that the facts were clear, the evidence was conclusive, the applicable law was correct and the judgment was correct.

2. The respondent's grounds of appeal are merely an excuse for his own violation of the law,It can be seen that the respondent has not realized the seriousness and harm of his illegal act, if not severely punished in time, how to establish the market order of honesty and credit? How is the property and personal safety of citizens guaranteed? The respondent's grounds of appeal cannot therefore be established,There are mainly the following points.

1, the respondent appealed that "hanging plaques and Internet propaganda behavior only shows that there is technical cooperation with other units, not seriously exaggerated their technical level" reasons can not be established, because the respondent in its hospital hall in a prominent position hanging Xi'an Jiao university first affiliated hospital "technical cooperation unit", Xijing Hospital "technical cooperation unit" plaque, as we all know, Xi'an Jiao university first affiliated hospital and Xijing Hospital (the fourth military medical university first affiliated hospital) in the country's medical technology is a leading, well-known medical institutions,And the respondent is intended to deceive and mislead consumers through false content such as technical cooperation with well-known or famous hospitals;

2, the network without borders, Internet propaganda and respondents in the region is not related, and the scope of dissemination is very wide, the harmful consequences are incalculable.

As a medical institution, the respondent disregards the medical conscience and social responsibility, and under the drive of its own interests, it is extremely harmful to mislead consumers or patients by brand name, false propaganda and deception.

3, the respondent said that "hanging the relevant billboard time is not long, but a short period of time hanging" reasons can not be established,Because the plaques are displayed in February and May 2013, the aim is to highlight the long-term "technical collaboration" with well-known or famous hospitals, can be said to be deliberately exaggerating the facts, false propaganda, deceiving and misleading consumers.

3. In accordance with Article 55 (1) of the Advertising Law of the People's Republic of China, "If a false advertisement is published in violation of the provisions of this Law, the administrative department for industry and commerce shall order it to stop publishing advertisements, order the advertiser to eliminate the impact within the corresponding scope, and shall be fined three times or less than five times the advertising cost, and if the advertising cost cannot be calculated or is obviously low, he shall be fined not less than 200,000 yuan and not more than one million yuan",

In this case, the respondent played the role of advertiser, advertising operator, advertising publisher, and it was unable to provide advertising expenses during the respondent's legal investigation of the bill, only to admit more than 10,000 yuan of advertising expenses and lack of valid evidence to prove, it is their own illegal acts to cover up, evade legal responsibility.

And during the hearing organized by the respondent in accordance with the law, the respondent did not provide new evidence on the expenditure of advertising expenses.

Therefore, according to the above-mentioned legal provisions, the respondent to give 200,000 yuan of administrative punishment has been the law of punishment offline, there is no case of too heavy punishment, there is no improper punishment.

To sum up, the respondent, as the market supervision and administration department, will perform his duties in accordance with the law and strive to create a fair and just socialist market order with integrity and honesty.

Please supervise the examination in accordance with the law and reject the respondent's appeal!

The appellant, Guyuan Municipal Market Supervision Authority, replied: First, the basic facts.

Concord Hospital did not accept the administrative penalty decision No. 006 made by the Development Zone Branch of the Guyuan Municipal Market Supervision Administration on September 13, 2017 and applied to the respondent on October 12, 2017 Administrative review, the respondent to accept in accordance with the law, October 30, 2017, the Economic Development Zone Branch submitted to this Council a written reply to the administrative review and related evidence materials, this Council conducted a review in accordance with the law, and on November 24, 2017 made an administrative review decision , maintained the Guyuan City Market Supervision Administration Development Zone Branch fixed by the opening of the City Supervision Office of the word "2017" No. 006 administrative penalty decision of the specific administrative acts.

2. The respondent maintains the grounds for the specific administrative acts erred by the accused in the first instance.

1, Guyuan City Economic Development Zone Branch in accordance with the higher authorities of the "advertising case transfer letter" related to the content of The Guyuan Concord Hospital to file a case investigation, the first instance plaintiffs in order to achieve the purpose of improving economic efficiency, in the Web site to publish Internet advertising, hanging billboards in the hospital hall, falsely advertising the hospital for the northwest well-known hospital, that is, Xi'an Traffic First Affiliated Hospital, Xijing Hospital, "technical cooperation unit" to promote its medical services.

After investigation and evidence obtained by the administrative organs, it is confirmed that the contents of medical advertisements published by the plaintiffs do not exist, with false content, deceive and mislead consumers, subjectively there is obvious illegality, objectively causing deception and misleading to the vast number of patients, constitute a serious violation of the law, the facts of the violation are clear and the evidence is conclusive.

Defendant Guyuan City Market Supervision Bureau Economic Development Zone Branch in the process of handling cases in strict accordance with the "Regulations on the Procedures for the Administration for Industry and Commerce", after the case, investigation and evidence, examination, decision, notification and hearing and other links, the procedures for handling cases are lawful.

2, in the administrative review, the plaintiff Concord Hospital on the facts of the violation, circumstances, evidence, procedures, etc. have no objection, only on the magnitude of the fine is disputed, think that the punishment is too heavy, and ask for the reduction of administrative punishment.

In the respondent's view,The focus of this case is on the calculation of advertising costs, advertising costs are advertisers, advertisers, advertising publishers to engage in advertising activities, including advertising design, production, publishing and other expenses.

The plaintiff in the first instance was unable to provide valid evidence of the expenditure of advertising expenses during the investigation and evidence collected by the administrative organ, which made the advertising expenses impossible to calculate.The plaintiff in the first instance admitted that the advertising expenses of more than 10,000 yuan lacked valid evidence and did not provide new evidence at the hearing.

Guyuan City Market Supervision Bureau Economic Development Zone Branch in accordance with advertising costs can not calculate the Concord Hospital from the light to give 200,000 yuan of administrative punishment is the law of the penalty range offline, handled appropriately, the punishment too heavy defense can not be established, this Council has not adopted.

3, Guyuan City Market Supervision Bureau Development Division of the Concord Hospital advertising violations on the basis of the "Advertising Law of the People's Republic of China" Article 4 "Advertising shall not contain false or misleading content, may not deceive and mislead consumers" and Article 28 (1), (v) "Advertising with false or misleading content to deceive or mislead consumers, constitute false advertising."

If an advertisement has one of the following circumstances, it shall be a false advertisement: (1) if the goods or services do not exist; and (5) other circumstances in which the content is false or misleading to the consumer.

Article 55 (1) of the Advertising Law of the People's Republic of China: "If, in violation of the provisions of this Law, a false advertisement is published, the administrative department for industry and commerce shall order it to stop publishing advertisements, order the advertiser to eliminate the effect within the corresponding scope, and shall be fined three times or less than five times the advertising cost, and if the advertising cost is not calculated or significantly lower, he shall be fined not less than 200,000 yuan and not more than one million yuan; If the advertising expenses cannot be calculated or are obviously low, a fine of between one million yuan and two million yuan may be revoked, and the advertising examination organ may revoke the advertising examination approval documents and not accept its application for advertising examination within one year", and the applicable laws of the qualitative and punishment shall be accurate.

4, the plaintiff to attract investment projects, borrowing tens of millions of yuan of assets for the benefit of the people of Guyuan, etc. put forward a defense, the respondent believes that this reason can not be used as the administrative organs to reduce the basis and reasons for administrative punishment, and therefore not adopted.

In summary, the respondent, in accordance with Article 28 of the Administrative Review Law of the People's Republic of China, "(1) the specific administrative acts are found to be clear, the evidence is conclusive, the application is based on correct, the procedure is lawful, the content is appropriate, the decision to maintain", and maintains the first instance defendant Guyuan City Economic Development Zone Branch made the specific administrative acts of the administrative penalty decision No.

In order to safeguard the dignity of the law and maintain an orderly market economy environment of fair competition, according to the Administrative Procedure Law, the court is requested to reject the appellant's claim in accordance with the law, and to uphold the first instance judgment of the people's court of the former state district, the costs of the proceedings shall be borne by the plaintiff in the first instance.

Neither the appellant, the appellant, provided new evidence at the second instance.

After the trial found that the facts and evidence identified in the second trial are consistent with the first instance, the court confirmed.

The Court considers that, according to Article 4 of the Advertising Law of the People's Republic of China, advertisements shall not contain false or misleading content, and shall not deceive or mislead consumers"Article 28 If an advertisement deceives or misleads consumers with false or misleading content, it shall constitute a false advertisement.

If the advertisement is false if one of the following circumstances occurs, it shall be false advertisement: (1) the goods or services do not exist; (2) the performance, function, origin, use, quality, specification, composition, price, producer, validity period, sales status, etc., or information such as the content, provider, form, quality, price, sales status, honor, etc. of the goods or services, and other information relating to the goods or services shall not conform to the actual situation, and shall have a fictitious effect on the purchase. Falsified or unverified scientific research results, statistics, survey results, abstracts, quotations and other information as supporting materials; (4) fictitious use of goods or the effect of receiving services; (5) deception or misleading consumers with false or misleading content.

Article 55 If, in violation of the provisions of this Law, a false advertisement is published, the administrative department for industry and commerce shall order it to stop publishing advertisements, order the advertiser to eliminate the effect within the corresponding scope, and shall be fined three times or less than five times the advertising cost, and if the advertising cost cannot be calculated or is obviously low, he shall be fined between 200,000 yuan and 1 million yuan; A fine of between one million yuan and two million yuan may revoke the business license, and the advertising examination and approval document shall be revoked by the advertising examination organ and its application for advertising examination shall not be accepted within one year.

If a medical institution has committed an illegal act as stipulated in the previous paragraph and the circumstances are serious, the administrative department of health may revoke the subject of diagnosis and treatment or revoke the license of the medical institution to practise, except for the punishment imposed by the administrative department for industry and commerce in accordance with this Law.

If an advertising operator or advertising publisher knows or should know that an advertisement is false and is still designed, produced, agencyd or published, the administrative department for industry and commerce shall confiscate the advertising expenses and shall be fined three times or less than five times the advertising expenses, and if the advertising expenses cannot be calculated or significantly lower, they shall be fined between 200,000 yuan and 1 million yuan; A fine of between one million yuan and two million yuan may be imposed, and the relevant departments may suspend the advertising business, revoke the business license and revoke the registration documents for advertising.

Advertisers, advertising operators and advertising publishers who commit acts as stipulated in the first and third paragraphs of this Article shall be investigated for criminal responsibility in accordance with the law if they constitute a crime.

In this case, the appellant Guyuan City Concord Hospital in its hospital hall in a prominent position hanging Xi'an Jiaoda First Affiliated Hospital "technical cooperation unit", Xijing Hospital "technical cooperation unit" plaque, and on the Internet claimed that it is "Xijing, Jiaoda Annex Hospital technical cooperation unit", and the former CCTV newscaster Lang Yongxuan's persona, CCTV news, reasonable optimization of medical resources, such as false or misleading content to deceive consumers Its behavior constitutes false advertising, and the appellant Guyuan Municipal Market Supervision Administration Economic Development Zone Branch shall punish it in accordance with the provisions of Article 55 of the Advertising Law of the People's Republic of China, which is well founded in law.

With regard to the appellant's claim that the offence was minor and did not have harmful consequences, and requesting grounds for appeal for a lighter or lighter administrative penalty,In the present case, because the Internet is a kind of border-bound, fast dissemination, wide dissemination, therefore, the appellant's violation of the law is minor, no harmful consequences require light or mitigating administrative penalties of the grounds of appeal can not be established, the Court does not support.

With regard to the appellant's view that the penalty of $200,000 was too high, it should be on the grounds of appeal against the penalty of three to five times the advertising fee.

Because the appellant was unable to provide valid evidence of advertising expenses during the investigation and evidence-taking period of the administrative organ, the advertising expenses could not be calculated, the appellants in the first and second instance failed to provide corresponding evidence to support their views, and the appellant could not calculate the administrative penalty of 200,000 yuan for the plaintiffs in the first instance according to the advertising expenses, which is the line of punishment prescribed by law and handled properly.

The appellant Guyuan Municipal Market Supervision Authority made (solid) the city supervision of the word "Administrative Review Decision" No. 1, maintaining the fixed by the opening of the city supervision office word "2017" No. 006 administrative penalty decision found the facts clear, correct treatment, so the appellant believes that the penalty is too heavy appeal grounds can not be established, this court will not accept.

To sum up, the court of first instance has decided that the law is well-founded, the procedure is lawful and the handling is correct.

The appeal request of the appellant, Guyuan City Concord Hospital, cannot be established and is not supported by the court;

Accordingly, in accordance with the provisions of Article 89 (1) of the Administrative Procedure Law of the People's Republic of China, the judgment is as follows:

The appeal was dismissed and the judgement upheld.

The case acceptance fee of 50 yuan shall be borne by the appellant Guyuan City Concord Hospital.

This judgment is final.

See more of the selected jurisprudence

Please pay attentionQuality Cloud Public Number