The value of law is the positive effect of law on people by meeting their needs. So what is the value of the Consumer Law? Its appearance can illustrate this point. The emergence of consumer movement and the birth of consumer rights protection law are major breakthroughs in traditional civil law. In the underdeveloped stage of commodity economy, consumers and operators have equal legal status, equal expression of will and decision-making ability, and the law gives equal protection to both parties. "The relationship between producers and consumers is considered to be reciprocal and interchangeable. Consumers have full freedom to choose goods and services, and relying solely on the liability for breach of contract in civil law can protect the rights and interests of consumers and maintain the balance between the two sides. " [6] However, with the development of social economy and technology, producers, sellers and consumers are increasingly separated, which objectively forms an unequal position between operators and consumers: on the one hand, operators rely on their strong economic and technological strength to seek huge economic benefits and do not hesitate to use various means to harm consumers' interests; On the other hand, in the face of increasingly numerous commodities, overwhelming advertisements and ever-changing technologies, consumers have lost their equal significance and decision-making ability with operators, and gradually become weak in market transactions. However, under the traditional civil law system, it is impossible for this vulnerable group to get legal protection and relief. On the contrary, the equal protection of civil law has become the legal basis for unilaterally protecting the interests of operators in objective practice. Based on this fact, with the widespread rise of consumer movements around the world, all countries have formulated special laws to protect consumers' interests, which are different from civil laws. Its theoretical basis is that consumers are in a weak position in consumer transactions, and it is necessary to increase the obligations of operators through laws, give consumers special rights, and seek equality with operators in practice in order to maintain normal trading order. It can be seen that the elimination of law has fair value and order value.
How does the provision on punitive damages in Article 49 of Consumer Law realize its fair value and order value? First of all, because of the high frequency of this kind of behavior, selling fake goods or providing services fraudulently is not only an infringement on the personal and private interests of consumers, but also an infringement on the interests of the state and all consumers, and an infringement on social rights. Punitive damages weaken the economic foundation of illegal operators, prevent them from doing evil again, prevent others from imitating their behavior in society, and protect the rights and interests of other legitimate operators. Therefore, the provisions of punitive damages are conducive to maintaining social and economic order. Secondly, in practice, many consumers give up their claim right for various reasons. 1996 a survey on the protection of consumers' rights and interests in China shows that 62.5% of consumers take a "forbearance" attitude when their rights and interests are infringed, and only 6.2% complain and seek social help. More sadly, no one is willing to resort to the judicial protection of the court. During the three years from 1993 to 1995, the amount of double indemnity in China was less than 1 10,000 yuan, accounting for 1/7000 of the total value of counterfeit and shoddy goods investigated. In this way, the cost paid by the actor because of his illegal behavior is far lower than the income they get from it, and it is unfair to implement this kind of infringement. The provision of punitive damages can increase the number of cases and the amount of compensation in a single case, induce consumers to approach legal protection, and thus realize the fair value of the law. Through the implementation of punitive damages, the wrongdoer feels unprofitable and even suffers greatly. This can reduce the occurrence of fraud in commodity sales and service provision activities, protect the normal social and economic order, and realize the order value of law. Thirdly, judging from the cost of injured consumers, in judicial practice, the amount of personal injury compensation received by consumers is generally small, and the compensation received by injured consumers is often lower than their actual losses. There are also some costs, such as time, energy and financial resources (including legal fees, investigation fees, attorney fees, etc.). ) and anxiety, it is difficult to get compensation through judicial relief. Punitive damages make up for this deficiency and ensure the realization of fair value. Of course, it is also possible for consumers to get compensation higher than the actual loss, and it cannot be said that it is unfair. This is also a reward for his contribution to society by counterfeiting.
From the above three aspects, Article 49 of the Consumer Law stipulates that consumers are encouraged to crack down on fraudulent fakes through punitive damages to realize their fair value and order value.
Whether Article 49 of the Consumer Law can be applied to Wang Hai phenomenon involves two key issues: first, whether those who "know that they are fakes" for the purpose of claiming compensation should be adjusted by the Consumer Law; Second, does the seller's (or operator's) behavior constitute fraud on the premise that the buyer "knows the fake and buys the fake"? For these two problems, we might as well analyze them one by one from the perspective of the value of consumer law.
Regarding the first question, people who "know that they are fakes" for the purpose of claiming compensation are not consumers, because consumers are individuals who "need to buy, use goods or accept services for daily consumption" as stipulated in Article 2 of the Consumer Law. It can be seen that as consumers, they must have the purpose of living consumption demand; The second is to buy and use goods or accept services; Three must be a natural person. In order to obtain double indemnity, Wang Hai obviously does not have the three requirements of consumers. They "scratch the edge" and think that consumers are forced to include them in the category of consumers other than producers and operators. This practice is not only against the law, but also unconvincing. But it is one thing that Wang Hai is not a consumer, and it is another matter whether he should be adjusted by the Consumer Law. Judging from the value of the Consumer Law, Wang Hai's behavior is conducive to the realization of its fair value and order value, and the fair value it realizes is the social fair value. Making and selling fake products not only harms consumers and legitimate operators, but also harms the overall interests of the country and society. Wang Hai is seeking justice and fairness on behalf of society. At the same time, Wang Hai's behavior also contributes to the realization of the order value of the Consumer Law. Their behavior shocked counterfeiters and sellers and protected legitimate operators. Therefore, Wang Hai was praised as a hero by ordinary people and even many operators, and Wang Hai personally won the bonus awarded by China Consumer Protection Foundation. The value of law is the driving force to promote the continuous evolution of law and the internal basis for the gradual improvement of law. Therefore, the author thinks that those who "buy fakes with knowledge" for the purpose of claiming compensation should be included in the scope of adjustment of consumer law as soon as possible, so as to have a clear basis for handling such cases in judicial practice. In the case of imperfect legislation, the judicial organs can handle such cases according to Article 6 of the Consumer Law, "Protecting the legitimate rights and interests of consumers is the common responsibility of the whole society", and include those who "know fakes and buy fakes" for the purpose of obtaining compensation into the adjustment scope of the Consumer Law, so that Wang Hai has the prerequisite for applying Article 49 of the Consumer Law.
The lawyer's views mentioned above are obviously biased. Wang Hai advocates that buying fake goods is conducive to realizing the value of consumer law, not a fault violation of the principle of good faith. It is the right and obligation of any citizen to supervise the market and safeguard the legitimate rights and interests of consumers, and there is no problem beyond the authority given by law.
For the second question, is the seller's behavior fraudulent under the premise that the buyer "knows the fake and buys the fake"? If it is fraud, the operator must compensate the person who "knows the fake and buys the fake" according to the provisions of Article 49 of the Consumer Law. We believe that the fraudulent behavior of the operator does not change its nature because the buyer knows, and Wang Hai's claim of "knowing the fake and buying the fake" should be supported by law. If the buyer knowingly fails to make an act of "wrong expression of will", the fraud of the operator will not be established, so the provision of punitive damages in Article 49 of the Consumer Law is not applicable, which is contrary to the fair value and order value of the Consumer Law. This also involves a correct understanding of "fraud". Some scholars understand "fraud" according to Article 68 of "Opinions of the Supreme People's Court on Several Issues (Trial)", and think that "if Wang Hai knows that the goods are fakes, there is no problem of deceiving Wang Hai at this time, which does not meet the constitutive requirements of causality in fraud. As for Wang Hai, he was really protected by double indemnity in the case of "knowing the fake and buying the fake", and more influenced by an emotion. In this case, the relief given to Wang Hai and double indemnity is not indulgence and tolerance for merchants, because there are other legal remedies, such as administrative punishment and even criminal punishment. " 9' Article 68 of the Supreme People's Court stipulates: "If a party intentionally informs the other party of false information, or intentionally conceals true information to induce the other party to make a wrong expression of intention, it may be deemed as fraud." That is to say, fraud must have four elements: fraudulent intention, future fraud, the wrong intention of the deceived party and the causal relationship between fraud and the wrong intention of the deceived party in order to establish fraud. The theory of four elements is actually a judicial interpretation made under a specific premise, based on Article 58 of the General Principles of the Civil Law, which stipulates that "the following civil acts are invalid: …… (3) an act made by one party against the true meaning by means of fraud, coercion or taking advantage of the danger of others. "Obviously, this article stipulates that the result of fraud and the victim's deception is the constituent elements of this invalid civil act. This explanation of fraud associated with the result obviously cannot be applied to fraud as a means in the Consumer Law. Article 49 of the Consumer Law stipulates that the "fraud" of "operators fraudulently providing goods or services" should be a unilateral act of fraudsters. This understanding is in line with the value orientation of Consumer Law. If we must fool consumers, then the fraud of operators can be counted as fraud, and consumers can't demand compensation on the grounds of "knowing the fake", so it is difficult to realize the fair value and order value of the Consumer Law, which is actually connivance and tolerance for merchants as fraudsters. Undeniably, "other legal remedies such as administrative punishment and even criminal punishment" have certain significance for realizing the value of eliminating the law, but it is obviously not enough to rely solely on administrative punishment and criminal punishment. The act of deceiving consumers is maliciously carried out by operators driven by profiteering. In reality, because of the heavy administrative punishment, fraudsters are only punished by administrative fines. It is often only after hurting consumers dozens of times that they are subject to administrative punishment. Continue to start work or even make up for the losses after the fine, forming a vicious circle of "fraud-fine-re-fraud", not to mention that many enterprises do whatever they want under the administrative umbrella. So, what about criminal punishment? Guangzhou investigated and dealt with 3,464 cases of counterfeit and shoddy goods 1993, but only 19 cases were put on file for investigation, accounting for a little over six thousandths, and only two cases were accepted by the court, less than one thousandth. Although Guangzhou's figures may not tell the whole country, the Supreme People's Court also pointed out that the crime of producing and selling fake and inferior commodities has not been effectively curbed. According to the statistics of the National Anti-Counterfeiting Office, the cases of manufacturing and selling fake and shoddy goods handled by the courts only account for five thousandths to seven thousandths of the cases investigated, but due to various interferences and obstacles, especially the protection of local departments, only one tenth of the cases were investigated and dealt with. (12J) It can be seen that in the design of the legal system, we should pay attention to the multi-level protection of consumers, and fundamentally mobilize the enthusiasm of the whole people to crack down on counterfeiting, so that the protection of consumers' rights and interests can be strongly and widely supported by consumers. Wang Hai's anti-counterfeiting claim should be supported by law. Only in this way can we realize the fair value and order value of the Consumer Law. On October 9th, 2065438+2004/KLOC-0, the Supreme People's Court promulgated the Provisions on Several Issues Concerning the Application of Laws in the Trial of Food and Drug Disputes, which clearly defined the hot issues in the field of food and drug consumption rights protection, unified the judgment standards and strengthened the protection of consumers' legitimate rights and interests. This judicial interpretation will be implemented on March 20 15 14.
Professional counterfeiters are not supported.
Terms:
In the event of a dispute over the quality of food and medicine, if the buyer claims the rights from the producers and sellers, and the producers and sellers make a defense on the grounds that the buyer knows that the food and medicine have quality problems, the people's court will not support it.
Sun, a spokesman for the Supreme People's Court, said that "buying fakes while knowing them" does not affect consumers' protection of their own rights and interests. Usually, shoppers should be recognized as consumers and can claim punitive damages.
Zhang Yongjian, president of the Supreme People's Court, also made it clear that professional counterfeiting is not within the prescribed scope. Professional anti-counterfeiting activities are usually organized and routine activities, and do not have the legal identity of consumers. Their anti-counterfeiting activities have the nature of a double-edged sword, and may also disrupt the normal market order.
"Gift" is not an excuse.
Terms:
Food and drug giveaways provided by producers and sellers of food and drugs to consumers have quality and safety problems, which have caused damage to consumers. If consumers claim rights and producers and sellers request exemption on the grounds that consumers have not paid the consideration for the giveaways, the people's court will not support them.
Sun said that food and medicine are related to the personal safety of consumers. Even if it is a gift, the quality and safety must be guaranteed. Although the consumer has not paid the consideration for the gift, the cost of the gift has actually been allocated to the paid goods. If the donated food or medicine causes damage to consumers' rights and interests due to quality problems, the producers and sellers shall also be liable for compensation.
Considering that the food and medicine given to consumers are essentially for profit, the regulations limit the conditions for producers and sellers to bear the responsibility, that is, the gifts must have quality and safety problems and cause damage to consumers.
If personal rights and interests are not damaged, you can also claim ten times.
Terms:
The people's court shall support consumers who produce food that does not meet the safety standards or sell food that they know does not meet the safety standards. Consumers not only demand compensation for losses, but also demand compensation of ten times the price to producers and sellers or demand compensation according to other compensation standards stipulated by law.
In response to the chaos in the food field, Article 96 of the Food Safety Law stipulates punitive damages ten times the price of food.
Some people think that the application of punitive damages should be based on the premise that consumers' personal rights and interests are damaged. Sun said that the Supreme Court issued the above provisions, and consumers claimed that compensation ten times the food price should not be based on the premise of personal rights and interests being damaged, so as to unify the judgment scale.
Knowing that the infringement is not done, the online shopping platform is responsible.
Terms:
The people's court shall support consumers to buy food and drugs through the online trading platform, and the online trading platform provider cannot provide the real name, address and effective contact information of the food and drug producer or seller, and the consumer requests the online trading platform provider to bear the responsibility. If the providers of online trading platforms know or should know that the producers and sellers of food and drugs use their platforms to infringe upon the legitimate rights and interests of consumers, and fail to take necessary measures, thus causing damage to consumers, and consumers require them to bear joint liability with the producers and sellers, the people's court shall support them.
Data show that in 20 12 years, there were 247 million online shopping users in China, and the online transaction amount exceeded 1.3 trillion yuan. More and more consumers buy food and medicine through online trading platforms, which leads to more and more disputes. According to the statistics of China Consumers Association, there were 20,454 online shopping complaints in 20 12 years, accounting for 52.4% of sales service complaints. 20 1847 1 online shopping complaints in the first half of the year, and 20,530 food and drug complaints in the first half of the year of 20 13. In order to better safeguard the legitimate rights and interests of consumers, the above provisions are formulated.
Endorsement of false drug advertisements can be held accountable.
Terms:
The people's court shall support consumers who have quality problems in foods and drugs recommended by false advertisements, and require advertising agents and publishers to bear joint and several liabilities according to the relevant provisions of the Consumer Protection Law and other laws.
Social organizations, other organizations and individuals recommend food and medicine to consumers in false advertisements, thus causing damage to consumers. In accordance with the Consumer Protection Law and other relevant laws and regulations, the people's court shall support consumers who request them to bear joint liability with producers and sellers of food and drugs.
Should celebrities be held responsible for endorsing false advertisements? 20 13 10 The newly revised Law on the Protection of Consumer Rights and Interests clarifies the responsibility of false advertising spokespersons. This time, the judicial interpretation has further clarified this.
Sun said that in joint and several liability, consumers can sue the producers, sellers, advertising agents, publishers and advertising spokespersons of food and drugs together, demanding that they bear the liability for compensation, or they can sue one or several of them as defendants, and they will bear all the liability for compensation, and then exercise the right of recourse to other responsible subjects. After so many years of counterfeiting, the number of counterfeit goods has not decreased, but has increased, and the scope has become wider and wider, from fake famous brands, fake electrical appliances and fake cosmetics to pirated CDs and pirated bestsellers. The case of counterfeit Panjin rice disclosed in various parts of Beijing shows the rampant counterfeit and shoddy goods. Why is this?
The state takes measures to support the claim for buying fake goods through legislation. The law on which the claim for buying fake goods is based is not that the operator provides goods or services fraudulently, but is based on the provisions in the Consumer Protection Law. "Matters not provided for in this Law shall be protected by other relevant laws and regulations." And the relevant provisions of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Food and Drug Disputes; Self-interest and public welfare should be consistent in safeguarding social fairness and justice, and legislation should support the new concept of rule of law of knowing and buying fake claims. It is stipulated that the scope of fake products is not limited to food, medicine, cosmetics and health care products. Article 17 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Food and Drug Disputes stipulates that "these Provisions shall apply mutatis mutandis to disputes between consumers and producers, sellers, advertising agents, advertisement publishers, recommenders and inspection agencies of cosmetics and health products". According to Article 2 of the Product Quality Law, "the products mentioned in this Law refer to products that have been processed and made for sale". These Provisions shall apply to "such products" whose scope is not limited by law. Obviously, the range of products referred to by knowing fake is not limited to food, medicine, cosmetics and health care products. Consumers who purchase mobile phones, tablet computers, T-shirts, engine oil, briefcases, suits, men's shoes, printers and sockets shall refer to these Provisions. To sum up, whether consumers know to buy fake goods does not affect their rights protection. The Guiding Opinions of Shenzhen Intermediate People's Court on the Trial of Disputes over Consumers' Rights and Interests clearly stipulates that citizens, legal persons or other organizations who purchase, use goods or receive services for the purpose of "counterfeiting" belong to "consumers" as mentioned in the Law of People's Republic of China (PRC) on the Protection of Consumers' Rights and Interests.