广告荐证者不能承受之重——针对《广告法(修订草案)》第39条第2款的思考

广告荐证人自证立法立足于虚假广告问题的现实考量, 顺应“明星代言入法”的趋势, 从广告市场和市场经济法治完善角度具有合理性动机。法律系统内部以及广告市场发展的困境, 引发荐证归责系统混乱以及某些商品与服务的“荐证不能”与荐证费用高昂。广告荐证法律规制的核心在于防止荐证成本的不合理转化, 自证立法在加重荐证者审慎义务的同时, 无助于执法的推进与立法动机的实现, 是荐证者不能承受之重;应当从做足连带责任入手, 从实体和程序两方面进行制度完善。

The Unbearable Weight of the Advertising Endorsers—From the Angle of Reg.39(2) of the Draft of Advertising Regulations (Revision Draft)

Self-evidence legislation based on the false advertising problems adapts to the trend of "celebrity endorsement ruled by law" and is rational from the perspective of the advertising market and the improvement of market economy. However, self-evidence legislation at the same time creates a predicament inside the legal system and advertisement market. It also raises chaos in the endorsement responsibility system, makes certain goods and service lose the possibility of endorsements and leads to high cost. The core of legal regulation on advertising endorsers is to prevent unreasonable transformation of costs, while self-evidence legislation increases advertising endorsers obligations but can't facilitate the operation of law enforcement and the realization of legislative motive. Therefore, we should pay more emphasis on the joint and several liability rather than self-evidence legislation to improve institute design from the aspects of entity and procedure.