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Peng Xuechun v. Shanghai Administration for Industry and Commerce (Case of Dispute over Nonperformance of Legal Duties)
彭学纯诉上海市工商局不履行法定职责纠纷案
【法宝引证码】

Peng Xuechun v. Shanghai Administration for Industry and Commerce (Case of Dispute over Nonperformance of Legal Duties)
(Case of Dispute over Nonperformance of Legal Duties)
彭学纯诉上海市工商局不履行法定职责纠纷案

Peng Xuechun v. Shanghai Administration for Industry and Commerce
(Case of Dispute over Nonperformance of Legal Duties)

 

彭学纯诉上海市工商局不履行法定职责纠纷案

BASIC FACTS 
Plaintiff: Peng Xuechun, Male, 56 years of age, address: Hutai Road of Shanghai Municipality. 原告:彭学纯,男,56岁,住上海市沪太路。
Defendant: Shanghai Administration for Industry and Commerce. Address: Zhaojiabang Road of Shanghai Municipality. 被告:上海市工商行政管理局。住所地:上海市肇嘉浜路。
Legal Representative: Zhang Wenwei, Director of the Administration. 法定代表人:张文蔚,该局局长。
PROCEDURAL POSTURE 
The plaintiff Peng Xuechun (hereinafter referred to as Peng) made a complaint to the defendant Shanghai Administration for Industry and Commerce (hereinafter referred to as the Administration for Industry and Commerce) on December 1, 2000, requesting it to fulfill its legal obligations, and make investigation and punishment on the case of illegal medical treatment advertisement broadcast by the Opera Channel of Shanghai Cable TV Station, which resulted in the death of his wife due to the medical treatment. After the Administration for Industry and Commerce made the decision orally that the relevant program was not an advertisement, and therefore his claim shall not be put on files, Peng then filed an administrative litigation with Xu Hui District People's Court of Shanghai Municipality. 原告彭学纯2000年12月1日向被告上海市工商行政管理局(以下简称工商局)投诉,要求其履行法定职责,对上海有线电视台戏剧频道播放违法医疗广告,误导其妻子就医时死亡一案进行查处。工商局口头作出有关节目不属于广告,不予立案后,彭学纯向上海市徐汇区人民法院提起行政诉讼。
The plaintiff claimed that: In the evening of August 16, 2002, his wife watched the TV medical advertisement broadcast by the Opera Channel of Shanghai Cable TV Station on the introduction of 411 Hospital, and was hospitalized there for treatment on August 21, but she died without any reason 29 days later. The defendant did not put the complaint on files and make investigation on the illegal medical treatment advertisement after receiving the complaint, which constituted nonperformance of legal obligations. He requested the defendant to fulfill its legal obligation, and make investigation and punishment on the illegal medical treatment advertisement broadcast by Shanghai Cable TV Station. 原告诉称:2002年8月16日晚,我妻子看了上海有线电视台戏剧频道播放的介绍411医院的电视医疗广告后,于8月21日住进了该医院进行治疗,29天后竟然无故死亡。被告在接到投诉后,没有对该违法医疗广告进行立案查处,属于不履行法定职责。要求被告履行法定职责,查处上海有线电视台播出的违法医疗广告。
The main evidence and basis provided by the plaintiff included: 原告提供的主要证据和依据有:
1. One disc of the program broadcast by the Opera Channel of Shanghai Cable TV Station on August 16, 2000, which supports that the program was actually a medical treatment advertisement. 1.2000年8月16日上海有线电视台戏剧频道播出的节目光盘一张,以证明该节目实际上为医疗广告。
2. Photocopy of the practicing license of 411 Hospital as a medical institution, which supports that the Hospital had no orthopedics department in its approved diagnosis departments and items. 2.411医院医疗机构执业许可证复印件,以证明该医院被批准的诊疗科目中无骨科一项。
3. Photocopy of the report concerning “Twelve medical institutions were punished”, the contents of which included the introduction of the medical advertisements in violation of laws and regulations by the director of the department of advertisement management of Administration for Industry and Commerce, which supports that it fell within the scope of functions of the Administration for Industry and Commerce to make investigation on illegal medical advertisements. 3.有关“12家医疗机构受罚”报道复印件,内容有上海市工商行政管理局广告管理处处长介绍医疗类违法违规广告的情况,以证明查处非法医疗广告属于工商局的职责范围。
4. Photocopy of the advertisement on 411 Hospital published by Shopping Guide on April 27, 2001, and the Citizens Weekly on April 20, 2001. And 4.2001年4月27日《购物导报》和2001年4月20日《市民周刊》刊登的411医院的广告复印件。
5. Photocopy of the Notice on Strengthening Administration on Medical Advertisements by Shanghai Administration of Public Health, and Administration for Industry and Commerce, which supports that the defendant should make investigation and punishment on the various illegal advertisements by applying the Notice. 5.上海市卫生局、上海市工商行政管理局《关于加强医疗广告管理的通知》复印件,以证明被告应适用该通知对各类违法医疗广告予以查处。
The defendant pleaded that: The TV program mentioned by the plaintiff was a special report, the main contents of which introduced the stories of Zhang, director of the 411 Hospital and other four pace-setters in the New Long March of Shanghai Municipality. Although there were contents concerning treatment of orthopedics in the program, it was not sufficient enough to determine it as an advertisement. Therefore, this Administration for Industry and Commerce had given written reply orally to the plaintiff that it would not put this on files and make investigation on the program. The plaintiff's present request did not comply with the facts for the defendant to fulfill legal obligations, and it pleaded to reject plaintiff's claim. 被告辩称:原告反映的电视节目是一个专题报道,主要内容介绍了包括411医院院长章某在内的五位上海市新长征突击手的事迹。节目虽然有关于骨病治疗的内容,但认定为广告依据不足,故我局已口头答复原告不对该节目立案查处。现原告要求被告履行法定职责与事实不符,请求驳回原告的诉讼请求。
The court played the recorded program concerning 411 Hospital broadcast by Shanghai Cable TV Station during the court hearing. In the cross-examination, the defendant had no objection to the evidence No.3 and 5; but believed that it was not sufficient enough to determine the program as an advertisement only on the basis of the evidence No.1; and evidence No. 2 fell within the scope of function of the Administration of Public Health; and the contents of evidence No.4 had been reflected by the plaintiff, and the Administration for Industry and Commerce had ever made handling on the illegal advertisements of 411 Hospital. 法庭在审理期间播放了经录制的上海市有线电视台播出的有关411医院的节目。在质证中,被告对证据3、5没有异议;但认为根据证据1的内容,认定其属于广告依据不足;证据2是卫生局的职权范围;证据4的内容原告曾经反映过,工商局对411医院的违法广告也曾处理过。
Xuhui District People's Court of Shanghai Municipality ascertained after hearing that: 上海市徐汇区人民法院经审理查明:
At 8 o'clock in the evening of August 16, 2000, the Opera Channel's “Flash Moment” Column of Shanghai Cable TV Station broadcast the special topic program “Songs of the Republic-to Those Who Have Rendered Outstanding Service to People”, the contents of which mainly introduced the stories of Zhang, director of 411 Hospital of Shanghai and other four pace-setters in the New Long March of Shanghai Municipality. Plaintiff Peng made a complaint to the defendant Administration for Industry and Commerce on December 2000, claiming that his wife was hospitalized in 411 Hospital on August 21, 2000 after watching the program, and died 29 days later. Peng believed that the program was an illegal medical treatment advertisement, and required the Administration for Industry and Commerce to make investigation and give punishment. The Administration for Industry and Commerce replied orally that the program was not an advertisement, and did not agree to put the case on file and make investigation and punishment. Therefore, Peng filed a lawsuit requesting the Administration for Industry and Commerce to fulfill legal obligations, and make investigation and punishment on the acts of the TV Station for broadcasting the illegal advertisement of the hospital. 2000年8月16日晚8点,上海有线电视台戏剧频道《闪亮时分》栏目播放了专题节目《共和国之歌——献给人民功臣》,该节目内容主要是介绍上海411医院院长章某等五位上海市新长征突击手的事迹。原告彭学纯于2000年12月向被告工商局投诉称,因为看了该节目,他妻子于2000年8月21日住进了411医院进行治疗,29天后死亡。彭学纯认为该节目系违法医疗广告,故要求工商局进行查处。对此,工商局口头答复该节目不属于广告,不同意立案查处。故彭学纯起诉要求工商局履行法定职责,查处电视台播出该医院违法广告的行为。
The focus of dispute of this case was: How to determine a medical advertisement, and whether the program broadcast by Shanghai Cable TV Station concerning 411 Hospital shall be determined as a medical advertisement? 本案的争议焦点为:应该如何认定医疗广告以及上海有线电视台播出的有关411医院的节目是否应认定为医疗广告。
Xuhui District People's Court of Shanghai Municipality held that: 上海市徐汇区人民法院认为:
The defendant the Administration for Industry and Commerce, which, as the organ that makes supervision and administration on the advertisements of Shanghai Municipality, shall have the power to give administrative punishment according to law on advertising activities in violation of legal provisions. It is clearly prescribed in the Measures for the Administration of Medical Advertisements promulgated by the State Administration for Industry and Commerce and the Ministry of Public Health on September 27, 1993 that: Medical advertisement is the activity of a medical institution, which publicizes its application of science and technology to make diagnosis and treatment on diseases to society or the general public through certain media or ways. The State Administration for Industry and Commerce had further clarified in the Reply No. 57 [2001] of the State Administration for Industry and Commerce on March 1, 2001 that: Where any mass media introduces any medical institution and the services thereof by ways of news report, and if the address, telephone number or other ways of contact of the medical institution, and etc. appear, and it releases the advertisement on the medical institution at the same media and the same time at the time when it makes report on the medical institution, even if the issuer has announced that it does not collect the fees, it shall be determined as releasing the medical advertisement by way of news report. From the contents of TV program provided by Peng we could see that, the special topic report has the basic characteristic for determination of medical advertisement as prescribed in the aforesaid provisions in the format, and the Administration for Industry and Commerce shall make investigation and handling on Peng's complaint, and informed him of the handling result. To sum up, Peng's claim for requesting the Administration for Industry and Commerce to fulfill legal obligations shall be supported. According to the provisions of item (3) of Article 54 of the Administrative Litigation Law of the People's Republic of China北大法宝, the court ruled as follows on December 9, 2002 that: 被告工商局作为上海市的广告监督管理机关,对违反法律规定的广告活动,有权依照法律的规定进行行政处罚。国家工商行政管理局、卫生部1993年9月27日发布的《医疗广告管理办法》明确规定,医疗广告是指医疗机构通过一定的媒介或者形式,向社会或者公众宣传其运用科学技术诊疗疾病的活动。国家工商行政管理局2001年3月1日在工商广字(2001)第57号答复中进一步明确,大众传播媒介利用新闻报道形式介绍医疗机构及其服务,如出现医疗机构的地址、电话号码或其他联系方式等内容的,在发表有关医疗机构报道的同时,在同一媒体同一时间(时段)发布该医疗机构广告的,即使发布者声称未收取费用,也应认定为利用新闻报道形式发布医疗广告。从彭学纯提供的电视节目内容可以看出,该专题报道从形式上具备了上述规定认定医疗广告的基本特征,工商局对彭学纯的投诉应予以调查处理,并将处理结果告知其本人。综上所述,彭学纯要求工商局履行法定职责的诉讼请求应予支持。依照《中华人民共和国行政诉讼法》第五十四条老婆觉得我剪头发浪费钱第三项之规定,于2002年12月9日判决如下:
The defendant Administration for Industry and Commerce shall, within three months from the day when this judgment takes effect, fulfill its legal obligation for making investigation and handling on whether the special topic program broadcast by the Opera Channel of Shanghai Cable TV Station at 20:00 o'clock on August 16, 2000 constitutes illegal medical advertisement, and inform the plaintiff Peng of the result. 被告上海市工商行政管理局应于本判决生效之日起三个月内,履行对上海有线电视台戏剧频道2000年8月16日20时播出的专题报道节目是否构成违法医疗广告进行调查处理的法定职责,并将结果告知原告彭学纯。
The case acceptance fees 100 yuan shall be borne by the defendant. 案件受理费人民币100元,由被告负担。
After the adjudication of the first instance, Administration for Industry and Commerce appealed to Shanghai No.1 Intermediate People's Court, and contended that the relevant special topic TV report concerned only introduced the stories of the director of the navy hospital and other medical physicians, including the contents of treatment of bone diseases, but it was not sufficient enough to determine it as an advertisement. After receiving Peng's complaint, the Administration for Industry and Commerce had made investigation positively, and made a disc of the contents of the program and gave it to Peng, told him the handling result, and had fulfilled its legal obligation, and therefore requested to reject Peng's claim. 一审宣判后,上海市工商局向上海市第一中级人民法院提出上诉,认为有关电视专题报道主要是介绍海军医院院长等医务人员的事迹,虽然其中包括了关于骨病治疗的内容,但认定为广告依据不足;接到彭学纯的投诉后,已积极进行调查,将节目内容录制成了光盘交给其本人,并将处理结果告知了彭学纯,已履行了法定职责,请求驳回彭学纯的诉讼请求。
Peng responded that: Shanghai Cable TV Station had never broadcast the similar program, and the program was sent to the TV Station by 411 Hospital after it had made the program by itself. The name of the medical institution, name of the physicians, and contents of medical treatment were clearly stated in the program, which shall be determined as medical advertisement, and requested to affirm the original judgment. 彭学纯辩称:上海市有线电视台过去从未播放过类似的节目,据了解该节目是411医院自行制作后送电视台的;该节目中明确说明了医疗机构的名称、医师的姓名、医疗的内容,故应认定为医疗广告,请求维持原判。
During the court hearing, the court played the program concerning 411 Hospital, which was broadcast by Shanghai Cable TV Station, and the two parties did not dissent with the fact determined by the court of first instance. 庭审中,法庭再次播放了经录制的上海市有线电视台播出的有关411医院的节目,双方当事人对一审法院认定的案件事实无异议。
JUDGMENT'S REASONING 
Shanghai No.1 Intermediate People's Court held that: 上海市第一中级人民法院认为:
Article 6 of the Advertisement Law of the People's Republic of China (hereinafter referred to as the Advertisement Law) prescribed that: The administrative department of industry and commerce of the people's government at or above the county level is the organ for the administration and supervision of advertisements. According to the provisions of the Advertisement Law, it is one of the functions of the administrative department of industry and commerce to make administration and supervision over advertisements, therefore, it falls within the scope of functions of the administrative department of industry and commerce to determine whether the relevant program constitutes an advertisement or an illegal advertisement, and how to make administrative punishment according to law. Peng believed that the program broadcast by Shanghai Cable TV Station fell within illegal advertisement, and violated his lawful rights and interests, and applied to Administration for Industry and Commerce to make administrative investigation on the advertisement, which complied with the relevant provisions of the Administrative Litigation Law of the People's Republic of China. 中华人民共和国广告法》(以下简称广告法)第六条规定,县级以上人民政府工商行政管理部门是广告监督管理机关。根据广告法的规定,广告的管理和监督是工商行政管理部门的职责之一,因此,认定有关节目是否构成广告、是否构成违法广告、以及如何依法进行行政处罚,均属于工商行政管理部门的职责范围。彭学纯认为上海市有线电视台播出节目属于违法广告,侵犯其合法权益,并向上海市工商局申请对该广告予以行政查处,符合《中华人民共和国行政诉讼法》的有关规定。
Paragraph two of Article 2 of the Measures for the Administration of Medical Advertisements of the State Administration for Industry and Commerce and the Ministry of Public Health prescribes that: Medical advertisement is the activity of a medical institution, which publicizes its application of science and technology to make diagnosis and treatment on diseases to society or the general public through certain media or ways. The advertisement as understood by the general public means the publicity and introduction on commodities or services and the entities providing commodities or services through media in a certain way. As is seen from the special topic program of Shanghai Cable TV Station played in the court hearing “Songs of the Republic-to Those Who Have Rendered Outstanding Service to People” that, although the recorded sound of the disc was not very clear, there was not only the introduction to Zhang, director of the 411 Hospital in the program reflected from the picture, but also introduction of the diagnosis and treatment method and treatment effect in large part of the contents, and the close-up(shot) of the name of the 411 Hospital also appeared on the screen for three times. There was not only the introduction on the work achievements of the medical physicians in the information reflected from the program, but also the introduction on the medical skill of the medical physicians and the special skill for medical treatment, and it obviously had the purpose of publicizing the hospital and the service thereof. Peng had the right reason to draw a conclusion that the program was a medical treatment advertisement. Therefore, the court of original trial was not improper to determine that the special topic report complied with the basic characteristic as a medical advertisement, and complied with the relevant provisions of the Measures for the Administration of Medical Advertisements. The reason of the Administration for Industry and Commerce that the program did not constitute an advertisement and shall not be investigated and punished could not be established. Although the Administration for Industry and Commerce had told Peng himself the reasons for not putting the case on file and making investigation, it did not fulfill its legal administrative function according to law, and failed to protect the personal rights and property rights of the applicant according to law, therefore, the court of original trial was not improper to determine that the Administration for Industry and Commerce shall make investigation on the program, its judgment shall be affirmed. 1993年国家工商行政管理局、卫生部《医疗广告管理办法》第二条第二款规定,医疗广告是指医疗机构通过一定媒介或者形式,向社会或者公众宣传其运用科学技术诊疗疾病的活动。公众所理解的广告,就是以一定的方式通过媒体对商品或者服务以及提供商品或者服务单位的宣传和介绍。从庭审播放的上海市有线电视台专题节目《共和国之歌一一献给人民功臣》来看,尽管录制的光盘声音不清晰,但画面反映出节目中不仅有对411医院院长章某的事迹介绍,还有相当一部分内容是介绍其诊疗方法和疗效,画面上还三次出现411医院名称的特写镜头。该节目反映的信息既有医务人员工作事迹的介绍,又有医务人员医术和医疗专长的介绍,其宣传医院和医院服务的用意十分明显,彭学纯有理由得出该节目属于医疗广告的结论。因此,原审认定该专题报道从形式上具备了认定为医疗广告的基本特征,并无不当,符合《医疗广告管理办法》的有关规定,工商局以该节目不构成广告而不予查处的理由不成立。工商局虽然将不予立案查处的理由告诉了彭学纯本人,但由于工商局没有依法履行其法定的行政职责,未能够依法保护申请人的人身权和财产权,故原审判决认定工商局应对该节目进行查处,亦无不当,可予维持。
Therefore, Shanghai No.1 Intermediate People's Court ruled on April 21, 2003 in accordance with the provisions of Item (1) of Paragraph One of Article 61 of the Administrative Litigation Law of the People's Republic of China that: 据此,上海市第一中级人民法院依照《中华人民共和国行政诉讼法》第六十一条第一款第(一)项之规定,于2003年4月21日判决:
JUDGMENT 
The appeal shall be rejected, and the original judgment shall be affirmed. 驳回上诉,维持原判。
This judgment shall be final.

 本判决为终审判决。
 

     
     
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