BEIJING 165438+ 10/8 News According to the Voice of China "Yang Guang Evening News", 16, the Legislative Affairs Office of the State Council published the "Regulations on the Implementation of the Law on the Protection of Consumers' Rights and Interests in People's Republic of China (PRC) (Draft for Review)" to solicit opinions from the society, which suggested that "professional counterfeiters" should not be applied. This makes the concept and group of professional counterfeiting and professional counterfeiters become one of the hot topics of the public.
Generally speaking, "professional counterfeiting" means "buying fake goods with suspicion or knowingly, and then making claims and getting compensation". Professional counterfeiters, on the other hand, are groups who take counterfeiting as their profession, look for products with problems in product quality, packaging marks, shelf life and advertising for a long time, and then obtain certain benefits through claims or other means. The draft for review is clear, "These Regulations shall not apply to those who purchase or use commodities or receive services for profit". This is the first time that the controversial issue of "professional counterfeiting" has been clarified since the implementation of 1994 Consumer Law.
The debate about "professional counterfeiting" has also existed for years. For the "professional counterfeiting" behavior, some people say that these people know that it is extortion to buy fake goods and claim compensation; There are also views that professional counterfeiters are the civil maintenance force of the market.
Usually, disputes about "professional counterfeiting" focus on the following points: First, are they consumers? Second, is it for profit? Third, is it blackmail?
How do professional anti-counterfeiting groups get gray income?
In the past twenty years, "professional counterfeiters" have been controversial in society since they appeared. Mr. Wang, a professional counterfeiter in Henan, is in his 40 s this year. He specializes in buying "fake goods" or defective products, and then asks the other party to pay multiple damages or bring a lawsuit to the court. Speaking of this profession, he said: "It is a very familiar field of work for me, which can not only suit my income, but also have some sense of accomplishment."
Because large supermarkets pay more attention to their own image, Mr. Wang mainly chooses relatively large supermarkets and stores. The selected commodities include food, daily necessities and some unusual commodities. As long as he finds that there are quality problems or the publicity does not match the goods, he can buy them in bulk. Mr. Wang said that the income of his current job is not particularly stable: "Sometimes I don't earn a penny for two or three months, and sometimes I earn a little in a month. Not very stable, sometimes there are no cases, and sometimes the case procedure is slow. "
Large shopping malls and supermarkets pay more attention to brand image and have economic strength. It is relatively easy to "buy" after claiming compensation, which has become the target of many professional counterfeiters. Ms. Liu has been running a supermarket chain in Zhengzhou, Henan Province for ten years. She said that in recent years, she has been guarding against groups such as "counterfeiters", but it is often impossible to prevent them, because it is difficult to ensure that there is no problem with the goods themselves: "These people are very low-key, and they will pick up the goods like customers and study them carefully. In fact, he is paying attention to some important information, such as shelf life, manufacturers, food safety signs, and very sensitive things. "
No matter how careful you are, it is difficult to guarantee "authenticity". Even if there is a production date, a slogan may become the handle of the "counterfeiter" claim. Ms. Liu revealed that supermarket employees mistakenly put expired chocolate candy on the shelves for normal sales and were quickly caught by professional counterfeiters. For the sake of fame, the store chose to settle privately: "If it is reasonable, it should not be sold. Then I bought about ten pieces the next day, and then I asked for ten times the claim. The result is a loss. At that time, I lost more than 1000 yuan, which was paid by the store itself. "
As for the administrative law enforcement department, its duty is to accept consumer complaints and safeguard the legitimate rights and interests of consumers. The staff of a grassroots industrial and commercial office in Zhengzhou revealed that the problem of consumer rights protection should be solved, but the repeated complaints of individual professional counterfeiters have added a lot of burden to law enforcement officers: "For example, fish oil, a label complained four or five times, and people's quality inspection reports have everything. If there is no problem, he will complain, and you should check the complaint. You check your manufacturer, you have to cooperate, and the manufacturer will spend. "
There are neither clear legal provisions nor corresponding industry norms. Since the birth of "professional counterfeiting", "counterfeiters" have not been bound by laws and regulations except their own self-discipline. The staff of Zhengzhou Industrial and Commercial Bureau said that in the past behavior definition, some "counterfeiters" were for profit, to promote businesses to correct their behavior, or were suspected of extortion. It was difficult to define and supervise in the process of law enforcement: "They didn't lose a penny, but they asked others for tens of thousands of dollars. His purpose is to oppress these supermarket manufacturers to lose money, and some of them are completely malicious reports. "
In fact, similar legal disputes and cases have appeared in many places in recent years. The reporter learned from the grass-roots court in Yangzhou City, Jiangsu Province that the number of consumer disputes due to knowing and buying fakes in an attempt to claim profits is increasing year by year. Some professional counterfeiters are no longer heroes of counterfeiting, but regard this right as a way to make money.
In March this year, Mr. Li from Yangzhou spent more than 20,000 yuan on 18 cheongsam in a large shopping mall in Yangzhou. In order to dispel the seller's doubts, he also lied that it was used for large-scale activities. After buying it, the samples were sent to a textile appraisal institution in Tianjin for testing, and it was found that the lining was 95% polyester fiber and 4% spandex. However, the composition on the clothes label is described as 100% polyester fiber, which is inconsistent with the identification results. Mr. Li thinks that the seller has cheated and asks for a refund of one and a compensation of three.
After contacting the manufacturer, the mall learned that considering the elasticity of the clothes, 4% spandex was added, but the label was not changed in time and no compensation was agreed. The two sides failed to negotiate, so they started a lawsuit. After investigation by the court, it was found that according to the relevant labeling documents of the textile industry, there was nothing wrong with the labeling of merchants.
Wang Tao, the presiding judge, explained: "It is stipulated that the product and a certain part of the product contain decorative thread and specific fiber, and the title of 100% can be used if the total content is less than 5%. For example, if the spandex is less than 5%, the label can be marked with 100% polyester fiber, and there is no subjective intention to deceive consumers." In the end, the court rejected all the plaintiff's claims.
According to the data, the Guangling District Court of Yangzhou accepted 3 cases of professional counterfeiting in 2065 and 438+04, 22 cases in 2065 and 438+05, and 29 cases in the first nine months of this year. Not only the number of cases increased year by year, but also these professional counterfeiters began to form groups, with division of labor and cooperation, becoming more and more professional.
Wang Tao introduced: "There are cigarettes, sugar, wine, clothing, shoes and bags, and food. These are all classified, and then the people in the purchasing group will be arranged to buy these products separately, and then after the test report is brought, they will be arranged to send them to the relevant appraisal institutions for testing. The person who arranges the claim will send the report to the corresponding merchant store. After talking about it, if you can't talk about it, you will go to court. "
Wang Tao said that nearly half of such consumer disputes accepted by the court were resolved through mediation. In order to avoid the trouble of litigation, merchants often pay more or less compensation to professional counterfeiters. The Consumer Protection Law has thus become the way for these professional counterfeiters to make money.
Dai Rong, Secretary-General of Yangzhou Consumers Association, believes that the change of professional counterfeiters' identity is precisely a better embodiment of businesses and manufacturers' standardized operation and consumption environment, but the existence of professional counterfeiters also reflects the lack of work of relevant functional departments to some extent. If the consumption environment is perfect enough, professional counterfeiters naturally have no soil to survive.
What is a professional anti-counterfeiting that protects rights or seeks profits?
Are counterfeiters really cracking down on illegal businesses? Mr. Qiao, the person in charge of an electronic appliance store in Zhengzhou City, Henan Province, told the reporter that if businesses do cheat consumers, they should be punished by relevant departments. However, there are also some bad "professional counterfeiters" who maliciously deceive businesses. With the country's increasing punitive damages for illegal business activities of various market entities, the emergence of wave after wave of professional counterfeiters has made businesses very headache. They claim compensation from the merchants by taking advantage of loopholes and fraud, and the merchants acquiesce either because of insufficient evidence or because they avoid trouble.
He Baoliang, secretary-general of the Consumers Association of Lai 'an County, Anhui Province, said that "professional counterfeiting" is mostly "knowing fakes and buying fakes". Although it has played an objective role in supervising businesses, it directly points to "compensation".
From July to September this year alone, Laian Consumers Association received nearly 30 reports from professional counterfeiters. Complaint letters are all in a unified format, and many of them are written by one person. He Baoliang said: "As far as we know, most of them are team-style, and their complaint letters are formatted. The requirements of specific situations are equivalent to a mold. Sometimes, he comes to solve the problem of goods. After a while, another professional counterfeiter reported the same problem, and there were more people with fixed staff. Our administrative resources are used to deal with professional counterfeiters. If we don't follow the requirements of the parties, he won't get the reward for reporting. He is not satisfied with the results we told him, and he will conduct administrative reconsideration on our administrative organs. "
Food is a commodity that professional counterfeiters complain and report more. Many consumers think that it should be supported for everyone's safety, and some people think that it is a kind of false justice to use illegitimate interests as an excuse. As the head of the food safety department, Lin Chenghong of Anhui Tianchang Market Supervision Administration believes that it is their duty to strengthen food safety supervision. The emergence of "professional counterfeiters" has also added a "lock" to food safety supervision. Food production and sales enterprises should start from themselves and strengthen self-inspection, so as to put an end to professional counterfeiters.
He Baoliang, secretary general of Anhui Laian Consumers Association, believes that malicious counterfeiting can be ruled out and consumer rights protection can serve more consumers.
Based on the anger of counterfeit goods, consumers have a natural affinity for professional counterfeiters and give them moral and behavioral support. After all, the concept of "one point is one point" has become the most basic cognition of most people. However, professional anti-counterfeiting has not played an irreplaceable role as expected. After all, according to the statistics of the court system, professional counterfeiters account for the vast majority of rights protection cases. Therefore, there are also views that without the publication of false information involved and the subsequent administrative punishment, as a civil anti-counterfeiting act, it cannot derive the greatest public interest. What you have, as netizens say, is "too busy to claim your own compensation."
Therefore, there are also some opinions and suggestions: it is precisely because of the label of "deformed industry" and the influence of extortion adopted by some professional counterfeiters that the existing survival mode of professional counterfeiters is doomed to be unsustainable. The truly popular and promising anti-counterfeiting model should be upgraded from self-interest to "buying fakes for others" and provide consulting and services by using its own professional knowledge to maximize its functions. Otherwise, the greater the effectiveness of its anti-counterfeiting, the more "other people's business" it is for the public.
How to treat the new rules of elimination?
As early as the 1990s when the Consumer Law was just promulgated, China's market economy was not very standardized, and it was easy to buy fake and shoddy products. People hate these fakes. When I heard that Wang Hai came out to fight fake, everyone felt very relieved and called Wang Hai a fake hero. Since 1995, the first fake of Wang Hai, the first fake in China, the group of professional counterfeiters has gradually evolved into a professional and organized operation, and the word "occupation" in front of the concept of counterfeiters has become more and more popular.
Regarding the draft Regulations on the Implementation of the Consumer Protection Law, which is being publicly solicited for comments, Wang Hai believes that in many details such as punitive damages, the current laws and regulations are far from enough, and some provisions are actually not operable. For example, consumers' motives cannot be judged. Whether it is for profit or not is subjective motivation. At present, it cannot be judged by objective standards. If the criterion is whether the costs and benefits are deducted, it means that all consumer rights protection will never be cost-effective in the future. This can only be said to increase the cost of civil counterfeiting.
Then, whether it is a professional counterfeiter or an ordinary consumer, how should we position and implement our right of recourse and compensation in safeguarding consumers' rights and interests? Wang Hai believes that this needs to follow four principles: as long as civil counterfeiting follows the principles of legitimacy, necessity, rationality and legality, it will always be a positive energy. We hope that there will be real punitive damages, and every consumer should at least feel economically that it is cost-effective to protect rights through litigation. At the same time, the most important thing is to establish the whistleblower system, that is, the whistleblower can share the fine system. If everyone who is executed can share a huge fine through reporting, then anyone who is executed will become a citizen to correct or stop fraud, so naturally, the opportunity for enterprises to do evil will become smaller and smaller. Now it is not that there are too many non-governmental anti-counterfeiting jobs, but too few.
In 20 14, the Supreme Law promulgated the Provisions on Several Issues Concerning the Application of Laws in the Trial of Food and Drug Disputes, which made it clear for the first time that the behavior of "buying fake while knowing it" did not affect the rights protection, and loosened the professional rights protection. In the case of rights protection in the field of food and medicine, the court refused to support the defense of "knowing fakes and buying fakes". Many people think that this will easily lead to "fairy fights", which consumers can't agree with.
Liu Deyu, a lawyer of Zhengzhou Jinboda Law Firm, said that the two laws and regulations do not conflict. In the trial of actual cases, the principle of "special provisions before general provisions" and the principle of "laws before provisions" will be followed. In the future, the field of food and medicine will remain the focus of attention of relevant departments and "professional counterfeiters";
"The Supreme Law has special provisions, with the special provisions of the Supreme Law. If there are no special provisions, I think both the Consumer Protection Law and the Consumer Protection Law are acceptable. Because of this food and medicine, maybe the country still gives special treatment. What to buy clothes, he can't affect his life and health, but he is in great danger for medicine and food. Even if a professional counterfeiter is willing to do so, it may make up for the lack of strength in this country. I think there may be this direction in the future. "
From this point of view, once the new "Regulations on the Protection of Consumer Rights and Interests" is implemented, it will be difficult for "professional counterfeiters" to obtain consumer protection in areas other than food and medicine. Some people have questioned that this provision may facilitate individual businesses to use the concept of "for profit" to stigmatize consumers' rights protection, dampen consumers' enthusiasm for rights protection, and ultimately violate the original intention of "rights protection". Liu Deyu suggested that in addition to the restrictions on "knowing and buying fakes", some unscrupulous businesses should be further restricted and regulated: "If restrictions are imposed in the future, it should be said that there should still be some other measures to make up for it. For example, will you increase the intensity of industry and commerce in the future, or increase the intensity of state supervision? For those businesses that violate the Consumer Law, it is still necessary to increase penalties, strengthen management and enforcement, and include this dishonest behavior in the violation. Ah, into your blacklist system, this will increase in the future. "
Some people think that professional counterfeiters need to return to the right path. The most important thing is not how to eliminate the group of professional counterfeiters, but to guide them back to the right path and play their due role in social governance. Some businesses, knowing fake and selling fake goods, are simply due to luck. Let's assume that if the professional counterfeiters in the market are not limited, but universal, will there still be fakes in this market? From the perspective of cultivating professional counterfeiters, it is impossible for everyone to become "Wang Hai"; But from the perspective of cultivating professional anti-counterfeiting awareness, everyone can become "Wang Hai". Why are ordinary consumers unwilling and not involved in counterfeiting? This involves not only professional knowledge, but also economic analysis based on the cost of counterfeiting. According to the current anti-counterfeiting ecology, anti-counterfeiting needs to pay a huge cost. For ordinary consumers, the amount of shopping is limited.