From Li Dan's heavy fine to offending economics｜Who will win in the end｜Let's talk about Marley

Hello everyone, my name is Marley. This is a small channel that has been removed for a long time, but is dedicated to improving your thinking ability and tearing fifty cents. In each issue, we will combine a political and economic case to help you analyze the reasons behind it and different thinking dimensions.

Since April of this year, China's market supervision department has issued heavy fines in succession. From April's 18.2 billion fine on Ali to Tencent's 1 million fine, Didi, Suning, and Meituan have all been spared, almost covering China's entire Internet industry. Coupled with the ban on the K12 education and training industry, it has only been less than half a year, and the Chinese government has worked hard to kill people.

On August 24th, the Beijing Haidian District Market Supervision Bureau issued another notice about talk show actor Li Dan’s “advertising” for women’s underwear on Weibo earlier this year, because the content contained “a woman who can easily lie down and win the workplace.” The words "equipment" were accused of vulgar content and degrading women's dignity. Therefore, in violation of the relevant provisions of the "Advertising Law", the illegal gains of 225,573.77 yuan were confiscated and a fine of 651,147.54 yuan was imposed. A total of more than 870,000 yuan was fined, and his company, Xiaoguo Culture, was also fined 230,000 yuan. In other words, the illegal cost of a "illegal" Weibo also exceeded 1 million yuan.

As soon as this article came out, Li Dan naturally liked to mention the hot search, which fully satisfied the broad masses of the people's hatred for the "trusts" and the stars' hatred for the rich, and there was an endless stream of applause from the public opinion. I don't want to comment on whether this series of bombshells has any specific relationship with the principles and policies of "common prosperity", "wealth is distributed", and "promoting social fairness and justice". However, the stark reality is that killing the rich does not help the poor.

On the topic of equality (fairness), justice, and justice, there is a lot of discussion on the Internet. Whether it is Chinese or English, the meanings of these words are very similar, and everyone's opinions are not the same. Here I borrow a picture that I personally think is quite interesting to briefly illustrate this problem.

We can see from this picture that if there is a wall blocking the court, if three people of different heights want to see the ball game, only the tall person may see it, and the medium and short people cannot. Suppose there are three boxes of social resources, then for fairness, everyone can put a box in it, the tall person can see it more comfortably, the middle person can also see, although the short person still can't see, but solve some problems Social problems, short people can only blame themselves for being too short. Then if you give two boxes to the short, one box for the middle, and you are taller for the taller, don’t waste social resources, as shown in the picture in the middle, which solves the problem of vulnerable groups, which is called justice. Then let's look at the last picture. If the wall is replaced with a shorter barbed wire, then everyone can watch the game without having to put a box, and at the same time save social resources, this is called justice.

If we use three idioms to express the above three scenarios, the first is called rain and dew, the second is called robbing the rich and helping the poor, and the third is eliminating barriers. Although this picture may not be particularly accurate in defining equality, justice and justice. But it can reflect a social reality that if the social system itself is unfair, no matter how artificially correct it, it will always harm the legitimate rights and interests of some people. Only by fundamentally solving the barriers and injustice of the system can people be convinced.

Today, we will take Li Dan's advertising scandal as an example, combined with the current situation of Chinese society, and try to analyze this imagination from three perspectives.

First, let's talk about "offensiveness"

In today's society, everyone seems to like to talk about "offensive". From a psychological point of view, the so-called offense is that someone touches your "psychological boundary", or "psychological defense line," intentionally or unintentionally. People will instinctively resist and protest against this cross-border behavior. Whether it's the self-deprecating statement of "being inexplicably offended", or the phenomenon of humiliation, or a global topic like feminism, people seem to be more and more mindful of being "offended." There are also individual and group differences in offense itself, i.e. individual offenses against individuals, individual offenses against groups, group offenses against individuals, and group offenses against groups. Regarding personal offenses, it mainly involves issues of personal dignity and personality analysis, and we will not discuss too much here. We focus on issues between individuals and groups.

There is a question on Zhihu once asked, if a person feels offended by a group of people, if that person has objections, the group of people often disapprove of it, and the group of people will speak ill of it. And if a person offends a group of people, that person is easy to blame. Someone used Le Pen's "The Crowd" to explain this problem, that is, the so-called people conform to the crowd, and people will use the beliefs of the group to judge whether their views are correct.

A group of people does something that offends one person. Although it is offensive, as long as it is approved by the group, it is correct in the eyes of the group. For example, there are endless moral kidnapping incidents on the Internet. The most typical one is the Zheng Shuang surrogacy incident. Regardless of whether Zheng Shuang has violated the interests of the group, as long as everyone thinks that you have a moral problem, you deserve to be banned and criticized. Individuals are not responsible for offending others. Zheng Shuang's behavior may not be worthy of encouragement, but should she also be protected and respected accordingly?

On the other hand, if a person does something and offends a group of people, there is a high probability that this person will be attacked by the group. For example, the previous talk show actor Yang Li was considered to be an insult to men because he made jokes about men. In the same way, Li Dan deserved to be punished for insulting women this time. Many people will ask, aren't Yang Li and Li Dan discriminating against sex? Don't you feel offended as their opposite gender group? What needs to be pointed out here is that people are often easily led into the trap of group consciousness. As long as someone says that you offend our group, more and more people will think that I am a member of that group, that is, the so-called victim with rhythm. When Li Dan posted that Weibo post, maybe there was a frivolous meaning in his words, but he immediately apologized and deleted the post. Although I also think this advertisement is a bit vulgar, is he really offensive and insulting? To the entire group of women? Strictly speaking, apart from women who feel offended, are there women who don't care, and are they also in line with the values of some women? (Of course, if there are such women, they will not admit it, understandable)

So, about offense and insult, it is an understanding mechanism of information exchange between subject and object. If the subject feels offended, you can raise your concerns with the subject and ask to stop the hurtful behavior. If the object is a group, it depends on whether you are willing to bring yourself into the consensus of the group. For offense, sometimes the interests of the group do not represent your interests. egoistic role. According to Le Pen, crowds are unintelligent and unconscious. Because what the crowd desires most is not freedom, but obedience. This also provides an excuse for some people in the group to want to manipulate the group's voice.

Next, let's talk about the second question, about "corrective justice".

Corrective justice originates from Aristotle's theory, and refers to a kind of rules and principles that meet the requirements of justice to compensate for distributive justice and exchange justice. To put it simply, it is to artificially correct phenomena and behaviors that have not achieved natural justice, and the subject implemented here is the public power representing the group.

"Corrective justice" is in line with the "compensation" and "revenge" mentality of most people. That is to say, for the disadvantaged party, we must help and support as much as possible. This is also a typical "white left" value. For example, the refugee policy in Europe and the black affirmative movement in the United States are typical "compensatory corrective justice". The Chinese people are more likely to accept "revenge corrective justice". If a person harms the interests of others, he must be punished. Therefore, if he causes harm, it becomes a "legal obligation". ". This is not to say that the West is all compensatory justice, while China is all vindictive justice (this is also common in East Asian countries), but that these two kinds of corrective justice can easily fall into a trap of overcorrection without the wisdom of the group. For example, should a child abductor deserve the death penalty? Or should the death penalty be abolished? And the political correctness (East or West) that we have talked about many times before is a classic example of overcorrection. The absolute right of discourse and justice in China's corrective justice are both defined by public power.

For example, Li Dan's punishment is based on the legal basis of Article 9, Item 7 of the "Advertising Law", which constitutes an act of publishing illegal advertisements that violate good social customs. I carefully read the first rule, the original text is "obstructing social public order or going against the good morals of society". What is public order? What is good manners in society? Here is a very loose interpretation space for public opinion and public power. If he endorsed a camp bed or a yoga mat, wouldn't it be considered a violation of social good fashion to "lie down and win the workplace"?

Here I think of a similar case. Durex, a copywriting genius, often touches the red line of good social fashion and is frequently fined. The most famous one is the fine of 800,000 yuan in 2019 for a joint advertisement with Heytea, TaopiaoPiao, and Are You Hungry? . Let’s think about it from a different perspective. As a sex product brand, how can I promote my products other than talking about it? As a consumer, it is completely subjective whether you like my copywriting and publicity methods. You can call me vulgar, you can absolutely not buy, despise, or cast aside, but you can’t take revenge just because you feel offended. As a group, what we see is a kind of hypocrisy of public morals: once the so-called justice, interests, dignity, and rights are concerned, everyone is angry and has a strong sense of justice. Once it is about understanding, understanding, and dedication, it is not considered a part of "justice". As a public authority, borrowing the public opinion and moral standards of the group to define good social customs can be said to be both fame and fortune.

Over time, the people have entered a state of spiritual pleasure (revenge) as long as they rob the rich, and almost no one cares about whether they can help the poor (compensation). So "correction" may never bring true "justice".

Third**, let's talk about "procedural justice". **

Procedural justice is a common criterion in adjudication in common law countries, that is, not only the result must be legal, but all the processes leading to the result must also be legal. The premise of "corrective justice" that I started talking about is "procedural justice". The Chinese don’t seem to have much sense of “procedural justice”. One is due to the legal system, and the other is due to the dual reasons of history and reality. We will not discuss too much here. "Overtaking on a curve" or "law of the jungle" both reflect the Chinese people's deep-rooted belief that the result is justice and that success or failure is a hero.

Let me go back to the example of Li Dan. The legal basis for the fine of Li Dan is based on Article 59 of the Advertising Law. In short, Article 59 stipulates that if Article 9 is violated, the advertiser will be charged , advertising publishers, and advertising operators shall be fined between 200,000 yuan and 1 million yuan, and advertising revenue will also be confiscated for advertising operators and advertising publishers. Here I have a few doubts to discuss with you:

1. The advertiser here is Li Dan, who just violated item 7 of Article 9. So his fine appears to be legal. But let's review the announcement of the Beijing Haidian Market Supervision Bureau claiming that Li Dan did not charge a separate advertising fee, so why should the illegal income be confiscated? Where is the source of this illicit gain?

2. Since the Advertising Law stipulates that advertisers, advertising publishers, and advertising operators must be fined for violating the law, why did the advertiser in this case, the underwear brand, not see the relevant results? Is it not published? Still not punished? Or is it private? we all don't know

3. It is also the most paradoxical point. On July 26 this year, Li Dan’s company, Xiaoguo Culture, was also charged 230,000 yuan by the Market Supervision and Administration Bureau of Fengxian District, Shanghai for the same reason, because it did not fulfill the obligation of supervision and audit. At first, I didn't understand why Li Dan was fined and his company also suffered. I carefully read the official explanation as follows:

The administrative penalty decision shows that Xiaoguo Culture is Li Dan's exclusive agent. Xiaoguo Culture has awarded Straits West Bund (Beijing) Culture Media Group Co., Ltd. (hereinafter referred to as "Haixi Company") to be the agent of Li Dan and other 14 artists from August 1, 2018 to July 31, 2021 Qualification, the artist has the right to review the information related to performing arts before accepting interviews with various news media or publishing and disclosing performance activities on personal blogs, Weibo, websites and other media.

Xiaoguo Culture obtained an advertising fee of 33,003.01 yuan after deducting the agency fee of Haixi Company, Li Dan's advertising endorsement fee and taxes paid. As mentioned above, Xiaoguo Culture is an advertising operator, and the advertising fee for its illegal advertising is 33,003.01 yuan.

If Xiaoguo Culture is an advertising operator, what legal role does its agent, Haixi Company, play in it? Why is Hercynian not an advertising commission operator? Why hasn't Hercynian been fined?

For the above questions, everyone may have been a little confused (including myself), and many people think that as long as the bad atmosphere is punished, it is fine, why bother with these details. The crux of the problem is if these details are not transparent and interlocking. That is to say, there are judicial loopholes and gaps in the law itself, which provides a lot of rent-seeking space for judiciaries and lawbreakers. The penalty is the penalty, has the problem been solved?

I saw on the Internet that Su Miaohan, an associate professor at Tongji University Law School, published a paper in 2012 called "Research on the Administrative Fines System in the Supervision of the Federal Government of the United States", which may have some inspirations in comparison with the laws of our country:

First, the purpose of the fine system is to pursue the unity of deterrence and redress

In addition to eliminating the possibility and deterrence of offenders benefiting from violations, U.S. legislation allows for the use of levied fines to set up funds for victim relief, which also reflects the unity of deterrence and redress. .In China, "Administrative Penalty Law" treats fines and confiscation of illegal gains as a parallel type of punishment. There is no relationship between the amount of fines and illegal gains, and it does not pay attention to the need for the counterparty to take preventive measures. It is difficult to generate sufficient deterrence for the counterparty, and it is impossible to urge the counterparty to actively take measures to prevent violations. In terms of victim relief, ignoring the interests of victims is a systemic problem in my country's administrative punishment legislation.

Second, the determination of the fine amount pursues a balance between consistency and flexibility

When determining the amount of fines on a case-by-case basis, in order to pursue the consistency of the amount of administrative fines and avoid being too light or too heavy, the discretionary benchmark formulated by the U.S. regulator distinguishes the fine base and adjustment coefficient, and clarifies the corresponding consideration factors, thereby effectively compressing The discretion of the regulator in determining the amount of the fine reflects the fair treatment of the regulated object. At the same time, it is also based on the particularity of the case, such as encouraging the violating party to surrender, encouraging the formulation of an effective compliance plan first, and adjusting it according to the violator's ability to pay, which reflects a high degree of flexibility. While China's Administrative Penalty Law stipulates the principle of "excessive fines are equal" in the general provisions, it does not provide any specific guidance on the amount of administrative fines. A large number of laws and regulations usually only stipulate the range of fines in a general manner, which is highly arbitrary. In order to overcome this problem of excessive flexibility and insufficient consistency, regulatory authorities in various parts of my country have successively formulated fines discretionary benchmarks, but most of them only refine the types of illegal acts and narrow the range of fines, and there is still a lack of systematic and scientific calculation methods for determining standards. In this regard, the experience of the United States is worth learning from. In addition, regarding the balance between procedural fairness and efficiency in the implementation of fines, this paper also has relevant analysis, so I will not continue to elaborate.

All in all, the pursuit of fairness and justice is a universal value that countries in any system in the world are pursuing and constantly striving for. What we need to point out is that in the process of pursuing fairness and justice, only the weak, the strong, the offenders, the victims, and the law enforcers follow the basic principles, which are moral, rule of law, and procedural. Only then can we be qualified to talk about issues of fairness, justice and common prosperity, or we will only be kidnapped by good and evil itself, which will harm others without benefiting ourselves.

Okay, that's all for today's sharing, I'm Marley, if you like this video, please like, share, subscribe and support it, we'll see you next time, 88.