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根据2009年6月1日颁布实施的《中华人民共和国食品安全法》虚假食品广告中的推荐者将与生产、销售商一并承担连带责任,该条款在出台前后就颇受争议。本文从民法中相关连带责任的规定出发,探讨民事主体的义务基础,进一步明确推荐者在食品广告中的义务主要应为如实宣传和广告审查等行为人可预知的行为,并以此作为连带责任的认定基础。而产品风险的承担具有不确定性,只能是作为予以消费者一定补偿的基础。同时明确,虚假广告的成立与否是追究推荐者连带责任的前提,需从广告的客观性、真实性、合法性等方面来考证,并结合近年来的典型案例进行进一步的个案分析。
According to the “Food Safety Law of the People’s Republic of China” promulgated on June 1, 2009, the recommenders in the false food advertisements will be jointly and severally liable with the producers and sellers. This provision was controversial before and after its promulgation. This article, starting from the provisions on related liability in civil law, probes into the obligation basis of civil subject, further clarifies that the obligation of recommenders in food advertisements should mainly be the predictable behaviors such as truthful propaganda and advertisement review, as a joint and several liability The foundations. The assumption of product risk is uncertain and can only serve as a basis for giving consumers some compensation. At the same time, it is clear that the establishment of false advertisements is a prerequisite for pursuing joint and several liability of recommenders. The objective and authenticity of advertisements and their legitimacy should be verified. Further case studies should be carried out based on the typical cases in recent years.