论虚假广告侵权归责原则的局限性

On the Limitations of Tort Liability of Misleading Advertising

实践中,虚假广告侵权一直被视为一般侵权行为,其归责原则适用传统的过错责任原则。实际上,虚假广告侵权在许多方面都有自己的特殊性,这使过错责任原则适用于虚假广告侵权显现出很大的局限性,已经不能很好地发挥法律责任的教育、预防及制裁功能。这种局限性也为虚假广告侵权适用一种更为严格的归责原则创造了条件。

Misleading advertising has always been regarded as infringement act and its tort liability is considered as the traditional fault liability. In fact, misleading advertising has its own traits. The application of fault liability to misleading advertising has many limitations and cannot show the full functions of the law. Thus, more strict fault liability should be worked out and applied to misleading advertising.