Jurisprudence: The use of self-made websites to advertise is a situation where advertising costs cannot be calculated

Administrative Judgment of the Second Instance of Shanghai Nono PoundEr Financial Information Services Co., Ltd. v. Shanghai Xuhui District Market Supervision Administration

Shanghai No. 1 Intermediate People's Court

Administrative judgment

（2018Shanghai01End of line467number

Appellant (plaintiff in the original trial) Shanghai Nono Pound Customer Financial Information Services Co., Ltd.,The residence is three roads in Jiangfield, Jing'an District, Shanghai76、78number303Room.

The legal representative, Huang Darong, executive director and general manager.

Commissioned agent Yao Wei, a lawyer at Beijing Yingke (Shanghai) Law Firm.

Commissioned agent Yin Yingfang, a lawyer at Beijing Yingke (Shanghai) Law Firm.

The appellant (defendant in the original trial) Shanghai Xuhui District Market Supervision Authority,The residence is Nanning Road, Xuhui District, Shanghai969number.

Legal representative Yu Xiaohong, Director.

Commissioned agent Chen Jie, staff member of the bureau.

Commissioned agent He Jian, staff member of the bureau.

The appellant, Shanghai Nono Pound Financial Information Services Co., Ltd. (hereinafter referred to as Nono Financial Services Co., Ltd.), rejected the Xuhui District People's Court of Shanghai in the case of the decision on administrative penalties for industry and commerce (2017Shanghai0104At the beginning of the line246administrative judgment, to appeal to the Court.This court is in2018Years.4Month.8After filing a case, a d'hearing shall be formed in accordance with the law, in the same year4Month.19The case was heard in a public hearing today. The appellants, Nono Financial Services Company's principal agents, Yin Yingfang and Yao Wei, the appellant of the Shanghai Xuhui District Market Supervision Authority (hereinafter referred to as: Xuhui Municipal Supervision Bureau) in charge of Mao, entrusted agents Chen Jie, He Jian to participate in the proceedings. The case has now been closed.

The original review clearly stated that2016Years.6Month.13On the same day, Xuhui Municipal Supervision Bureau received the Shanghai Municipal Administration for Industry and Commerce (hereinafter referred to as: Municipal Bureau of Industry and Commerce) numbered "Shanghai Industry and Commerce (Guangzhou) lead delivery (2016）0215、0216、0217、0219、0220、0222、0224No. 1 " Notice of case lead delivery, designated the Bureau to Nono Financial Services Company suspected of violating the Advertising Law of the People's Republic of China (hereinafter referred to as the "Advertising Law") series of clues to be verified and dealt with in accordance with the law.2016Years.7Month.4On The same day, Xuhui Municipal Supervision Bureau opened an investigation into the alleged violation of the Advertising Law by Nono Financial Services. Because of the complexity of the case,2016Years.9Month.30with the approval of the head of the organ for a one-month extension.2016Years.10Month.24Japan, after discussion at the Secretary's office meeting decided to postpone again.2017Years.1Month.9day and1Month.13On the same day, Xuhui Municipal Supervision Bureau twice asked Tang Yi, chief affairs officer of Nono Financial Services, and produced the "Inquiry Transcript" separately.2017Years.2Month.21On the same day, Xuhui Municipal Supervision Bureau issued a Notice of Administrative Penalty Hearing to Nono Financial Services Company.2017Years.2Month.23Nono Financial Services filed for a hearing.2017Years.3Month.10On the same day, Xuhui Municipal Supervision Bureau held a hearing and produced a transcript of the hearing.2017Years.3Month.27On the same day, Xuhui Municipal Supervision Bureau produced a "hearing report", which recommended that the case handling department should be returned for supplementary investigation.2017Years.5Month.24On the same day, Xuhui Municipal Supervision Bureau produced the "Final Report on the Investigation of Cases", and on the same day made the word "Xu City Supervision Office"[2017]The.040201613136No. 1 Administrative Penalty Decision, ordered to stop publishing illegal advertisements and eliminate the impact within the corresponding scope;

2017Years.5Month.27Day.The Xuhui Municipal Supervision Bureau served the Administrative Penalty Decision to Nono Financial Services Company, which was not convinced and applied to the Municipal Bureau of Industry and Commerce for administrative reconsideration, and then withdrew the application for reconsideration during the reconsideration hearing. Novo Financial Services filed a lawsuit with the court of first instance, requesting the revocation of the administrative penalty decision made by Xuhui Municipal Supervision Bureau.

According to the original review,Xuhui Municipal Supervision Bureau has the responsibility of advertising supervision and management in the administrative region, the Bureau after receiving the City Bureau of Industry and Commerce case clues to the notice, according to law to investigate. Checked, Nono Financial Services, Noel Financial Services, No.0The term "expected annualized interest rate" is used in products such as the Meta Plan, and "expected annualized interest rate is the highest" on the front page of the official website12%"The term advertising is contrary to the provisions of Article 25 (1) of the Advertising Act.OtherThe company's advertising is published through its own website, through its subordinate departments for design, publishing and maintenance, its advertising design, production, maintenance and other costs can not be independently accounted for, so Xuhui Municipal Supervision Bureau in accordance with the relevant provisions, found that advertising costs can not be calculated is not improper.To sum up, the administrative penalty decision under suit determines that the facts are clear, the applicable laws and regulations are correct, the procedure is lawful and the discretion is appropriate. The decision rejected Nono Financial Services' claim. After the verdict, Nono Financial Services appealed to the court.

The appellant, Nono Financial Services, appealed thatThe appellant will be "ordered to stop publishing illegal advertising and eliminate the impact within the corresponding scope" as an administrative penalty and fine side by side, is the legal type of illegal creation of administrative punishment, is beyond or even abuse of power; The appellant found that the appellant's advertising was not clear; that the "expected annualized interest rate" was not a guaranteed commitment, nor did it imply a guaranteed capital, risk-free or guaranteed income, and that the expression would not be misleading, so the appellant did not provide "goods or services with expected return on investment" as referred to in article 25 of the Advertising Act, nor did the display of information constitute an offence referred to in subsection (1) of that article, and the applicable law of the appellant was incorrect;The appellant is not an advertising platform, it publishes loan information on its official website, the main cost is the designer's salary, the fee charged is also the service fee, there is no problem of calculating advertising costs, the appellant arbitraryally found that the appellant belongs to the "advertising fee can not be calculated" situation, at the same time from the heavy punishment, and the nature, circumstances, extent of the appellant's behavior is very inconsistent with the abuse of power and obviously improper administrative acts.Therefore, the administrative penalty decision against the plaintiff is illegal, and the court of second instance is requested to revoke the original judgment and change the judgment in support of the appellant's claim.

The appellant, Xu Hui City Supervision Bureau, argued thatIt is not illegal for the appellant to order the appellant to stop advertising while imposing an administrative penalty;12%"The formulation constitutes an offence under article 25 (1) of the Advertising Act, and the appellant's calculation of advertising costs by multiplying the average salary of the designer by the length of time taken is inconsistent with the law and is therefore not accepted by the appellant." The administrative penalty decision against the suit is lawful, and the court of second instance is requested to reject the appeal and uphold the original judgment.

During the second instance hearing, the appellant Xuhui Municipal Supervision Bureau still proved the legality of the administrative penalty decision made by the appellant, Xuhui Municipal Supervision Bureau, on the basis of the evidence of authority, facts, laws and procedures provided to the court of first instance. The parties still insist on the arguments and the opinions of the evidence in the first instance. After the trial found that the original examination of the clear facts are correct, the Court confirmed.

The Court also found that the Administrative Penalty Decision found that Nono Financial Services was primarily engaged in the business of providing funds to both borrowers and borrowers to provide financial information services through its official website (website:www.nonobank.comPost product information and advertisements to the public. Self -.2016Years.6From now on, the parties are in the "0The advertising term "expected annualized interest rate" is used in products such as meta-plan;2017Years.1On the front page of the official website, the parties use the "expected annualized interest rate is the highest."12%"Advertising terms. The cost of advertising the above advertisements by the parties concerned cannot be calculated. The above-mentioned acts of the parties violate the provisions of Article 25 (1) of the Advertising Law and shall be punished in accordance with the provisions of Article 58 of the Advertising Law.

The Court considers thatIn accordance with the provisions of Article 6, paragraph 2, of the Advertising Law and Article 8 of the Regulations on Administrative Punishment Procedures of the Administrative Administration for Industry and Commerce, the Appellant Xuhui Municipal Supervision Bureau, as the local administrative department for industry and commerce in charge of the supervision and administration of advertising in the administrative region, is responsible for the work related to advertising management and has the authority and responsibility to make the decision on administrative punishment to be prosecuted in this case in accordance with the law.

According to Article 2 of the Advertising Law and other provisions, commodity operators or service providers through a certain medium and form directly or indirectly to introduce their own sales of goods or services activities, advertising. In this case, the appellant, Nono Financial Services, acted as an Internet financial intermediary to provide financial information services to both borrowers and borrowers, and brokered the final loan agreement between the borrowers and borrowers, introducing the financial products and information services provided on its official website, which constituted advertising.The appellant stated that the expression "expected annualized interest rate" made on the official website was a product introduction and information statement, which was inconsistent with the substance contained in the statement and was not accepted by the Court.

Article 25 (1) of the Advertising Law stipulates that advertisements for goods or services with expected return on investment, such as investment returns, shall bear reasonable hints or warnings about possible risks and risk liability, and shall not contain the following: (1) make a guaranteed commitment to future effects, gains or circumstances related to them, express or imply capital preservation, risk-free or guaranteed income, unless otherwise provided by the State.According to the above-mentioned law, advertising of goods or services with an expected return on investment must be open to risk and liability, and the containing of a guaranteed commitment is prohibited. In this case, the appellant, Nono Financial Services, used the "expected annualized interest rate" and "expected annualized interest rate" on its official website12%"There is no scientific and reasonable basis for calculation and method of measurement, it is easy to mislead investors into misunderstanding of the financial products marketed by the appellant to preserve capital, risk-free or income, so that investors can not fully understand the possible risks of the projects they invest in."On the basis of the investigation, the Appellant Xuhui Municipal Supervision Bureau found that the advertising terms used by the appellant on its official website constituted an offence within the terms of the above-mentioned law, and that the main evidence was sufficient and the facts were clear.

Article 23 of the Administrative Punishment Law of the People's Republic of China stipulates that when an administrative organ implements an administrative penalty, it shall order the parties concerned to correct or correct the illegal act within a time limit. Article 58, paragraph 1, of the Advertising Law stipulates that if one of the following acts is caused, the administrative department for industry and commerce shall order it to stop publishing advertisements, order the advertisers to eliminate the impact within the corresponding scope, and shall be fined more than twice or less than three times the advertising cost, and if the advertising cost cannot be calculated or is obviously low, a fine of between 100,000 yuan and 200,000 yuan shall be imposed; The business license may be revoked, and the advertising examination and approval documents shall be revoked by the advertising examination organ and the application for advertising examination shall not be accepted within one year: (7) if advertisements for goods or services with expectations of return on investment, such as investment returns, are published in violation of the provisions of Article 25 of this Law. In this case, after the appellant Xuhui Municipal Supervision Bureau found that the appellant, Nono Financial Services Company, had committed an illegal act, it ordered the appellant to stop publishing illegal advertisements and eliminate the effects within the corresponding scope, and fined 180,000 yuan, in accordance with the above-mentioned legal provisions. The appellant ordered the appellant to stop publishing illegal advertisements and to eliminate the affecting content within the corresponding scope, not to add the legal category of administrative punishment, but to implement the appropriate meaning of administrative punishment. OtherThe appellant used his own website to advertise products and services, and the appellant determined that the appellant was in a situation where advertising costs could not be calculated, in line with the actual situation and the legislative intention of the Advertising Act.The penalty applicable to the general circumstances of the appellant shall be administratively punished to the appellant, the scope of which shall be within the statutory limits and shall be consistent with the nature, degree of fault and harmful consequences of the appellant's violation, and there shall be no abuse of power as the appellant claims.

After receiving the notice of the case lead of the Municipal Bureau of Industry and Commerce, the appellant Xuhui Municipal Supervision Bureau, after filing a case, investigating, extending the processing period, hearing and supplementary investigation, makes the decision on the administrative punishment to be sued, and the law enforcement procedure is lawful.

Another court needs to point out that the appellant Nono Financial Services Company, as an online lending information intermediary providing financial information services, should publish service information matching its business scope, the appellant on the one hand said that the company is a financial lending platform, lenders lend money, according to the interest rate agreed in the loan agreement to preserve interest, on the other hand, on its official website using "expected annualized interest rate", "expected annualized interest rate is the highest."12%Such words, and said that the risk warning has been made, obviously easy for investors to confuse the company's business and service content, but also make their own business scope blurred. Under the situation that the public's demand for investment and financial management is growing and the investment financial risk is not controllable, the appellant should abide by his or her role as an intermediary of financial information services, provide true and reliable service information to both borrowers and borrowers, and ensure the investment security of financial markets.

In summary, the appellant Xuhui Municipal Supervision Bureau made the decision of the administrative punishment of the appeal on the basis of sufficient, clear findings, the applicable law is correct, the punishment procedure is lawful, the penalty range is reasonable, the original judgment rejected the appellant Novo Financial Services Company's request to set adone the decision on punishment is not improper, this court should maintain. Accordingly, in accordance with the provisions of Article 89 (1) (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 fee for the acceptance of appeal cases is RMB50Yuan, borne (paid) by appellant Shanghai Nono PoundEr Financial Information Services Co., Ltd.

This judgment is final.

Presiding Judge Zhou Yuhua

Judge Chen Genqiang

Judge Ning Bo

June 8, 2018

Clerk Wang Fei

- Source:China Referee Papers Network