《食品安全法》视野下的广告代言人及其归责

The Liability of the Spokesman in False Advertisement from the Perspective of Food Safety Law

"三鹿"案的余波使食品安全问题成为众矢之的,而为虎作伥的虚假广告中代言人的角色也受到了极大质疑。事后,《食品安全法》的出台带有极强的政策导向性,该法第50条对代言人课以严格责任和连带责任,缺乏逻辑性和法理基础。广告代言人与经营者的地位、性质不同,广告中的代言人的言行不具有可信赖性,代言人在广告中也不具备独立的法律人格,其权利、义务统一于合同行为之中,而非与消费者的对立之中。既然代言人不是经营者,那么,法律就不应当课以比经营者更重的严格责任,也没有理由让其承担所谓的连带责任。

The wave of ＂Sanlu case＂ makes food safety a target of public concern, and the role of the spokesman in false advertising has also been questioned with a great disbelief. Later, Food Safety Law has been issued with a strong policy orientation. The Article 55 of Food Safety Law sets up the strict lia- bility and joint liability against the spokesman, which the author thinks lacks logic and legal foundation. Spokesmen and proprietors are different in their status and natures. The words and deeds of spokesmen are not reliable ,and they don＇t have independent legal personality. Their rights and obligations are con- fined to contract behaviors. So they don＇t conflict with customers. Since spokesmen are not proprietors, then they shouldn＇t assume more serious responsibility than proprietors, nor should they take the joint responsibility.