試論不實廣告之契約效力擴張──臺灣高等法院109年度消上字第10號判決之簡評

The Expansion of Contractual Effectiveness of False Advertising: Comment on the Taiwan High Court of 109 Siao Sun 10

依消費者保護法第22條第1項前、後段規定，乃分別規範企業經營者之廣告內容真實義務及廣告內容最低義務。依最低義務，廣告內容成為契約之一部分，然廣告是否或如何成為契約內容，實務上仍有爭議，本文以「具體明確性原則」檢驗本案事實，論證該原則有助釐清衡量企業經營者商業言論自由與消費者權益之間衝突下的選擇。
又薦證者雖乃直接參與廣告者，然於企業經營者與消費者之間，仍屬消費契約以外之第三人，縱廣告成為契約內容，依公平交易法第21條第5項規定，亦僅與廣告主負連帶侵權責任，然該條於侵權行為角度的認識，於本件觀察，除使消費者負該條要件事實之舉證責任外，亦將導致該條「明知或可得而知」之善良管理人注意義務標準彈性、抽象，不免淪為審判者之恣意認定，使該條保護消費者權益之功能不易發揮，目的落空，故有從契約行為之角度，重新建構關於薦證者對消費者所應負之責任之實益。
本文為平衡兼顧契約相對性原則，以「足以識別薦證者身分之資訊者」作為契約主體範圍效力擴張之判準。並藉由契約效力之擴張，使薦證者負與企業經營者相同般「善盡調查、確認資訊正確性並據實提供予消費者」之義務，及舉證之責，方能落實公平交易法與消費者保護法保護消費者之意旨。

In accordance with the Consumer Protection Act Article (CPA) 22, Paragraph 1, advertising content becomes a part of the contract; however, a practical dispute remains on whether and how the advertisement becomes part of the contract. This study examines the facts of the case through the principle of“specificity and clarity,”arguing that this principle helps clarify the balance and choices between the freedom of commercial speech or business operators and the protection of consumer rights.
Despite being directly involved in the advertisement, the endorser is still considered a third party outside the consumer contract between business operators and consumers. Even if the advertisement becomes part of the contract, according to the Fair Trade Act, Article 21, Paragraph 5, the endorser is only jointly and severally liable with the advertiser. However, from the perspective of tort liability, the interpretation of this article may lead to consumers bearing the burden of proving the facts required Moreover, such understanding may also result in the standard of the“knows or should have known”duty of a prudent manager being vague, abstract, and difficult to determine, thereby becoming an arbitrary exercise of the judge’s discretion. Therefore, a need exists to reframe and explore the responsibilities of the endorser to consumers from the perspective of contractual behavior.
Whether the contract validity extends to the endorser between traders and consumers, this study first clarifies the relationship between the Fair Trade Act and the CPA from the consumer protection standpoint. Then, based on four benchmarks-third-party burden of contract, third-party beneficiary contract, Germany’s protective effect contract on third parties, and the Uniform Commercial Code U.C.C.2-318 of the United States, this study confirms that the contracting parties may not necessarily exempt third parties from obligations. A further analysis, by analogy, applies the CPA Article 22 to demonstrate the possibility, necessity, and legitimacy of the endorser being subject to the contract validity.
In this regard, to balance and consider the maintenance of the privity of contract,“adequate information to identify the recommender”is used as a criterion for expanding the contract validity. This criterion is maintained through“reasonable reliance,”the connotation of which, in addition to being reasonably foreseeable by the recommender, also implies the reasonable expectation of the“average consumer.”To avoid traders evading their responsibilities and the current inadequacy of the application of the norm in Article 21, Paragraph 5 of the Fair Trade Act in protecting consumers, a need exists to extend the endorser’s obligation to the contract validity. Since the endorser is subject to the contract validity, it should, in accordance with Article 22 of the CPA, actively and comprehensively fulfill the obligation of“conducting investigations, confirming information accuracy, and providing truthful information to consumers.”The endorser must also bear the burden of proof to respect consumer intentions, thereby realizing the purpose of protecting consumers under the Fair Trade Act and CPA.