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Shanghai No. 1 Intermediate People's Court

Yes.Political.Sentenced.decisionBook.

（2018Shanghai01End of line467number

Appellant (plaintiff in the original trial) Shanghai Nono Pound Customer Financial Information Services Co., Ltd., domicile in Shanghai Jing'an District, Jiangyuan Road 36, 78 Room 303.

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, residence at 969 Nanning Road, Xuhui District, Shanghai.

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.), appealed to the Court in the case of the decision on administrative punishment for industry and commerce, against the Administrative Judgment No. 246 of the Shanghai Xuhui District People's Court (2017) Shanghai 0104. After the case was filed on April 8, 2018, the Court formed a d'affaires in accordance with the law and heard the case in a public hearing on April 19, 2018. 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.

Originally reviewed Ming, on June 13, 2016, Xuhui Municipal Supervision Bureau received the Shanghai Municipal Administration for Industry and Commerce (hereinafter: Municipal Bureau of Industry and Commerce) number "Shanghai Industry and Commerce (Guangzhou) Clue Delivery (2016) 0215, 0216, 0 217, 0219, 0220, 0222, 0224 "Case lead notice, designated the Bureau of The 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. On July 4, 2016, the Xuhui Municipal Supervision Bureau opened an investigation into the alleged violation of the Advertising Act by Nono Financial Services. Due to the complexity of the case, on September 30, 2016, it was extended for one month with the approval of the head of the organ. On 24 October 2016, after discussion at the Office of the Director-General, it was decided to postpone it again. On January 9th and January 13th, 2017, Xuhui Municipal Supervision Bureau twice asked Tang Yi, Chief Officer of Nono Financial Services, and produced the "Inquiry Transcript" respectively. On February 21, 2017, Xuhui Municipal Supervision Bureau issued a Notice of Administrative Penalty Hearing to Nono Financial Services. On February 23, 2017, Nono Financial Services filed for a hearing. On March 10, 2017, Xuhui Municipal Supervision Bureau held a hearing and produced a transcript of the hearing. On March 27, 2017, Xuhui Municipal Supervision Bureau produced a Hearing Report, which recommended that the case handling department be returned for additional investigation. On May 24, 2017, Xuhui Municipal Supervision Bureau produced the "Final Report of Investigation of Cases", and on the same day, the Xu City Supervision Bureau issued The Administrative Penalty Decision No. 040201613136, ordering the publication of illegal advertisements and eliminating the impact within the corresponding scope;

On May 27, 2017, Xuhui Municipal Supervision Bureau served the Administrative Penalty Decision with Nono Financial Services, which was not convinced and applied to the Municipal Bureau of Industry and Commerce for administrative reconsideration, which was later withdrawn during the review process. 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.

The original trial held that the Xuhui Municipal Supervision Bureau had the responsibility of advertising supervision and management in the administrative area, and the Bureau, after receiving the notice of the handling of the case leads of the Municipal Bureau of Industry and Commerce, launched an investigation in accordance with the law. It was found that Nono Financial Services used the term "expected annualized interest rate" in products such as the "0 yuan plan" and the advertising term "expected annualized interest rate of up to 12%" on the front page of the official website, in violation of the provisions of Article 25 (1) of the Advertising Law. 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 that the appellant would "order the suspension of illegal advertising and eliminate the impact within the corresponding scope" as an administrative penalty and a fine, which is the legal type of illegal creation of administrative penalties, is an act that exceeds or even abuses its authority; It is not an advertising term, the appellant found that the appellant's advertising is not clear, "expected annualized interest rate" is not a guaranteed commitment, not to suggest that the capital preservation, risk-free or guaranteed income, the expression will not be misleading, soThe information displayed by the suitor is not "goods or services with expected return on investment" as referred to in Article 25 of the Advertising Act, and the display of information does not constitute an offence referred to in sub-paragraph (1) of that article, and the appellant is wrong in applying the law; Advertising costs can not be calculated" situation, at the same time from the heavy punishment, and the appellant's behavior is very inconsistent with the nature, circumstances, degree, is an 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, Xuhui Municipal Supervision Bureau, argued that it was not illegal for the appellant to order the appellant to stop advertising while imposing an administrative penalty; 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 company is mainly engaged in providing funds to both borrowers and borrowers to match financial information services business activities, through its official website (www.nonobank.com) to publish product information and advertising. Since June 2016, the party has used the advertising term "expected annualized interest rate" in products such as the "0 yuan plan" and since January 2017, the party has used the advertising term "expected annualized interest rate of up to 12%" on the front page of the official website. 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 that, in 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 shall be responsible as the local administrative department for industry and commerce in charge of the supervision and administration of advertising in the administrative regionAdvertising management related work, in accordance with the law has the power and responsibility to make the decision of administrative punishment in this case.

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 Company used the term "expected annualized interest rate" and "expected annualized interest rate of up to 12%" on its official website, and there was no scientific and reasonable basis and method of calculation, which could easily mislead investors into the misunderstanding of the financial products marketed by the appellant, so that investors could not fully understand the risks that might exist in the projects they invested 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 administrative organs shall impose administrative penaltiesthe party concerned shall be ordered 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.In addition, the appellant used its own website to advertise products and services, and the appellant found 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 appellant shall be subject to an administrative penalty for the application of the general circumstancesPenalties, the scope of punishment within the statutory limits, in line with the nature of the appellant's illegal acts, the extent of fault, the consequences of harm, etc. , there is no appellant's claim of abuse of power.

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 protect interest, on the other hand, on its official website using the words "expected annualized interest rate", "expected annualized interest rate of up to 12%", and said that it has made risk tips, It is obviously easy for investors to confuse the company's operations and services, and also to blur its own business scope. 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 hearing of the appeal case is RMB 50 and shall be borne (paid) by the 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: Public No. Practical talk on the rule of law”)