The name of the case: Shanghai Daye Cloud Computing Co., Ltd. v. Shanghai Pudong New Area Market Supervision AuthorityAdministrative penaltiesCase.

The source of the case: Administrative Judgment of the Second Intermediate People's Court of Shanghai(2019Shanghai 02 line end 366

Briefs：

    Appellant(First instance.)Defendant.): Shanghai Pudong New Area Market Supervision Authority(hereinafter referred to as“Pudong Municipal Supervision Bureau”）。

　　Appellant(First instance.)Original.Notice):Shanghai Daye Cloud Computing Co., Ltd(hereinafter referred to as“Daye”）。　

Daye is mainly engaged in human resources software development services business，The residence is located in Pudong New Area. After receiving the report, the Pudong Municipal Supervision Bureau conducted an on-site inspection of Daye's business premises on May 15, 2018After.Right.The.The company has filed a case for allegedly publishing illegal advertisements. On June 4 of the same year, a screenshot was made of Daye's official website, which was reflected in the "Honor Award" column on its official websiteYes.2 groups of pictures，The content is proof of the HRoot-sponsored Human Resources Services Award, with the caption "Best Recruitment Management Software Service Provider in Greater China 2017-2018" and "Best Recruitment Management Software Service Provider in Greater China" at the bottom of the image for the third consecutive year (2013-2016).Good recruitment management software service provider '" the word. Pudong Municipal Supervision Bureau forward the award host on day one company's award to verify the award, confirm the resultsThe award is true.From 2 August to 13 December of the same year,Pudong Municipal Supervision BureauAfter deciding to extend the time limit for handling the case and the hearing procedure,Make an administrative penalty decision and identify Dayeposted the award on its websiteActs have been in violation of section of the Advertising Act9Article (iii) "Use of terms such as 'national level', 'highest level' and 'best'". Under section of the Advertising Act57Article (1) and Article 1 of the Administrative Penalties Act27article1The provisions of sub-paragraph (1) shall reduce the penalties and fines100,000 yuan。 Daye was not convinced and sued the court, demanding that the above-mentioned administrative penalty decision be reversed and that the fine paid be returned.

First instance judgment:

The Jing'an District People's Court of Shanghai, after hearing the case, held that:In this caseThe focus of the disputeFor.Dayi's awards are displayed on its official website and are accompanied by the absolute term "best"of theDescription of whether the situation violates section of the Advertising Act9The regulations of article (3).set. If the market supervision organ determines that advertising is illegal and uses absolute terms, it shall explain the indentation. In addition to the use of "best" and other such terms, illegal advertising using absolute terms should also embody three characteristics: First, it has subjective orientation, rather than the use of absolute terms in the simple objective description of goods or services, that is, subjective fault. Second, there should be the possibility of improperly harming the competitive interests of peers and disturbing the market order. Third, there is the possibility of misleading the audience. In this case, Dayi's award information posted on its own website consists of two parts, the picture and the text description, although the word "best", but the term is only an objective retelling of the name of the award in the picture, the picture can also reflect the award body, time and award content, the two are consistent. Therefore, Daye's use of "best" text to repeat its winning name does not reflect its subjective fault. Even if the word "best" is included, when combined with the award evaluation period, it is no longer an absolute description. Therefore, theBehavior is difficult to mislead the audience, thus creating the possibility of harming the competitive order. Therefore, the judgment revokes the administrative penalty imposed by the Pudong Municipal Supervision Bureau and returns it to Daye CompanyA fine of 100,000 yuan.

First instanceAfter the verdict, the Pudong Municipal Supervision Bureau was not convinced.Appeals are filed。

Judgment of the second instance:

The Jiangsu Provincial High People's Court held that:The focus of the dispute in this caseFor.:1.Whether Dayi's use of the term "best" is an advertising campaign under the Advertising Act.2.Whether the act violates article 9 (3) of the Advertising Act。

With regard to Focus Question 1, section of the Advertising Act2It is stipulated that commercial advertising activities should have two characteristics: first, through a certain media and forms of publicity, with broad publicity properties, and second, directly or indirectly promote specific goods or services, to induce the audienceto be carried outBuy. In this case, Daye was published on its self-built official websiteWhat you getHonorary awards, which are published to a non-specific public through the Internet, have a wide range of publicity attributes. The name of the awardSaid directly to the company's main business, with indirect pushthe sale of goods or servicesAnd.Induce audience purchasesshall therefore fall under section of the Advertising Act2barThe scope of regulation。

About focusPoint 2, first of all,The executive branchConsideration should be made as to whether advertising activities harm the legitimate rights and interests of consumers and undermine the social and economic order, and whether administrative penalties must be imposed, otherwise it is difficult to restore market order or make up for damaged rights and interests.Secondly, the Advertising Act9barWith the exception of subparon (iii), all other prohibitions point to more serious harmful consequences that may infringe upon the State, society or othersinterests, etcconduct, and the provisions of sub-paragraph (iii) are only the sameThe articleThe harmful consequences of the other items are comparableYes.found to be illegal. In this case, Daye showed the honorAwards.Text with the word "best" is not highlightedIts.Content.Including.AuthorityAnd.Time limit，Indicates that you are not calling yourself "best"、Public evaluationFor."Best"。 This action does not infer malicious behavior that demeans other competitors and misleads consumersThere are no harmful consequences for disturbing market order and infringing on the rights and interests of potential consumersto be sued for administrative punishmentObviously withThe companyThe degree of harm of the behavior does not match。 So this hospitalDismissed.Its.appeal and uphold the original judgment.