Is the cost of production without advertising that is equal to the cost of advertising?

"I sincerely thank the procuratorial organs for us to be fair for us. In the future, we will operate legally and compliant." Recently, the heads of two enterprises in Boai County, Henan Province came to the county procuratorate to hold the prosecutor's hands and thank you.

A textile company and silk factories in Boai County are two bath towel processing companies. In order to expand the market size, in July 2019, the two companies designed themselves to publish a shower towel advertisement into short videos on the network platform for publicity. In August of the same year, an administrative law enforcement department received reports from the masses, reflecting the publicity of the two companies for false business propaganda. In July 2020, a certain administrative law enforcement department believed that textile companies and silk factories used short video to carry out false business publicity on bath towel products, deceived and mislead consumers. The behavior was illegal. It is impossible to calculate independently and belongs to the situation of "advertising costs cannot be calculated", and then make a penalty decision on the two companies. Given that the two companies can actively delete advertisements and eliminate impacts, they can reduce their punishment. In the end, an administrative law enforcement department will pay 80,000 yuan in administrative penalties for the two companies.

In January 2021, the textile company and the silk factory filed an administrative lawsuit to the court, requesting the penalty decision to the court, and the enterprise was justice. On July 19 of the same year, the court tried that the administrative penalty decision made by an administrative law enforcement department determined that the facts were clear, the applicable laws and regulations were correct, the procedures were legal, and the decision was appropriate, and the two companies rejected the litigation request of the two companies. The company was not convinced, and the appeal to the court was rejected.

In October 2021, the heads of the textile company and the silk factory came to the Boai County Procuratorate for supervision. After the case was accepted, the prosecutor took the case of the case of the court and a certain administrative law enforcement department, communicated with the case handler, and asked the parties. Judging from the cases and the parties' reflection, the focus of the dispute between the two parties is that the advertisement issued by the two companies belongs to the situation of "advertising costs cannot be calculated".

Article 55 of the my country Advertising Law stipulates that if a false advertisement is issued, the market supervision and management department shall order to stop the release of advertisements, and order advertisers to eliminate the impact within the corresponding range. If calculated or significantly low, a fine of more than 200,000 yuan and less than one million yuan. Therefore, it is determined that the advertisement issued by the two companies is the key to the case of "advertising costs cannot be calculated".

To find out the problem, the prosecutor conducted a investigation. Judging from the situation reflected by the person in charge of the enterprise, the advertising department released by itself is self -designed, entrusted to others to make, and used the online platform to upload and publish it. The entire process has not paid any fees, but the textile company has paid the platform to increase the video playback volume. The cost of 400 yuan. Subsequently, the prosecutor commissioned the county's price certification center to evaluate the price of advertising short videos produced by the enterprise. The price authentication center conducts inspection and market surveys through the target, and finally determined that the cost of design and production advertisement should be 450 yuan. In addition, the 400 yuan promotion fee paid to the platform should be 850 yuan. Advertising costs should be 450 yuan.

The interpretation of the advertising law clearly states that "advertising costs cannot be calculated" refers to some illegal subject subjectively concealing, destroying, and refusing to provide valid advertising contracts and invoices. The administrative law enforcement department cannot find out the advertising costs during the law enforcement process. In this case, the two companies actively cooperated with the investigation of an administrative law enforcement department to delete videos and eliminate the impact. Subjectively did not conceal any reality. The evidence of concealing advertising costs directly determined that "the advertising costs cannot be calculated" and the fine of 80,000 yuan is obviously unreasonable.

On November 26, 2021, after discussion and decision of the Procuratorate of the Pok Oi County Procuratorate, they issued retrial procuratorial suggestions to the court in accordance with the law. On December 29 of the same year, the court trial committee discussed and ruled that the two administrative penalties were reorganized. On May 31st this year, the Boai County Court made a judgment in accordance with the law, adopted the procuratorial prosecution proposal of the procuratorial organs, the verdict was revoked, and the administrative penalty decision made by an administrative law enforcement department was revoked.

The Boai County Procuratorate found in the investigation that the county's bath towel processing enterprises reached more than 80, and the products were exported to domestic and foreign. The county was also known as "the hometown of Chinese bath towel cloth". However, due to the false propaganda of some enterprises, the rights and interests of other companies are damaged. In order to promote the operation of the bath towel industry in accordance with the law, after communicating with the chairman of the bath towel association, on June 28, the Boai County Procuratorate sent the case to undertake the prosecutor for the person in charge of the county's bath towel processing enterprise. The law lectures on the rule of law of the rule of law guide them to enhance fair competition awareness, standardize production and operation behavior, create a good atmosphere of knowledge, abide by the law, understanding of the law, and usage in the whole society, and better protect the legitimate rights and interests of consumers.

(Source: Prosecutor's Daily Author: Liu Lixin Sun Construction Du Yufang)

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