◎ Article "Legal Person" magazine all-media reporter Peng Fei
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For a long time, health care products for the elderly have been a hot topic in the field of consumer rights protection. On January 1, the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in the Handling of Criminal Cases Of Endangering Food Safety (hereinafter referred to as the "Interpretation") was officially implemented, which stipulates the conviction and punishment of crimes such as the use of health care products to defraud the elderly, punishes the use of health food and other fraudulent property in accordance with the law, and establishes provisions for special protection for food safety of the elderly, minors and other groups. In addition, the implementation of the Civil Code provides substantive legal support for public interest litigation in the field of food and drug safety, and provides another possible solution for the elderly to protect their health care consumption rights.
With the continuous improvement of the legislative system and the continuous strengthening of law enforcement, the order of the consumer market for elderly health care products has continued to improve, and the regulatory effect has been remarkable.
What are the common problems in the consumer rights protection of health care products for the elderly? How to further improve the legislative system for elderly health care consumption? How to further strengthen administrative supervision? How can public interest litigation be effective in the field of health product consumption? In response to the above problems, on the eve of the Spring Festival in the Year of the Tiger, the reporter of "Legal Person" interviewed Chen Yinjiang, deputy secretary-general of the Consumer Rights and Interests Protection Law Research Association of the China Law Society and executive director of the Beijing Jingguang Consumption Big Data Research Institute.
Concealment has been enhanced, making it more difficult to supervise
"Although China's laws and regulations are becoming more and more perfect, and the supervision and law enforcement efforts are also increasing, the issue of consumer rights protection for the elderly is still not optimistic." Chen Yinjiang introduced that from the complaints and reports accepted by the relevant departments, the elderly are more likely to believe in the business, and when they encounter problems, they generally do not take the initiative to report, and most of their children or families only complain after they find out. Some elderly people are even unwilling to cooperate with the investigation of relevant departments, which not only increases the difficulty of investigation and punishment, but also condones illegal business violations of laws and regulations. Some unscrupulous businesses have adopted methods such as staggering working hours and changing work locations to carry out illegal business activities specifically for the elderly.
In some specific cases, some unscrupulous businesses deliberately show weakness in front of the elderly, using the compassion of the elderly to let the elderly cooperate with them to evade supervision. Some unscrupulous businesses even defame the image of law enforcement departments, so that the elderly have resistance to law enforcement departments. For example, when law enforcement personnel discover suspected illegal "meeting sales" activities and carry out "rational thinking and cautious investment" persuasion, some elderly people not only ignore it, but will argue with law enforcement personnel like protecting their children, excusing illegal operators.
In other cases, unscrupulous businesses study relevant laws and regulations in advance, exploit loopholes in them, or skillfully circumvent the boundaries of laws and regulations to avoid their own responsibilities and increase consumer risks. For example, when some unscrupulous merchants falsely exaggerate publicity, they only have oral statements and no evidence; although some merchants make more verbal promises, they not only have no relevant content in the contract, but also deliberately prompt "do not believe the oral commitments of employees, everything is subject to the written contract".
In addition, the elderly receive information channels are relatively closed, and the channels for obtaining information mostly come from relatives and friends. Usually an old man falls into a trap, and a large group of relatives and friends can't run away. Coupled with the low vigilance and repeated deceptions in the face of similar problems, it is difficult for some elderly people to effectively prevent and control the problem of consumer rights protection.
Implement a dual-track system and increase punishment
In view of the problem of elderly health care products, how to improve the relevant laws and regulations and standard systems? Chen Yinjiang believes that first of all, we should implement a dual-track management system of registration approval and filing. The revision of the Food Safety Law in 2015 has transformed China's health food regulatory system from "registration approval one by one" to "dual tracks of registration approval and filing in parallel", "This is a major change, which is not only conducive to solving the drawbacks of complex and time-consuming procedures for registration and approval one by one, but also conducive to supervising health food producers and operators to fulfill their social responsibilities." ”
Chen Yinjiang told reporters that China does not yet have a complete set of health food standard system, and a complete technical standard and inspection system is a technical valve for health food safety. In order to improve the health food standard system, the administrative department must first clean up the existing standards and fill in the standard gaps. On the one hand, accelerate the introduction of national standards in line with international standards, organize experts and scholars to carry out research on raw material and food additive standards, and formulate scientific and operable standards based on risk assessment; on the other hand, timely update local standards and enterprise standards to ensure that they are not lower than national standards and coordinate the standard system. Secondly, the state can increase financial and capital investment to support the establishment of the inspection system as soon as possible, while strengthening the standardization of the inspection system, and allocating the resources of the inspection agency according to the regional situation, so as to make the best use of it. In addition, it is necessary to always urge enterprises to conduct self-inspection and intermediary inspection agencies to perform their duties.
Article 53 of the Food Safety Law clearly stipulates that the mainland shall establish a food recall system, which divides the recall into an active recall and an ordered recall. However, in reality, the main body of frequent recalls is the producer and seller, the scope is relatively narrow and the initiative is not strong, it is difficult to comprehensively solve the problem of food quality or safety. In view of this situation, Chen Yinjiang believes that first, it is necessary to expand the scope of the main body of the recall, and stipulate in the legislation that the public can apply for a recall ordered by the government after discovering problems; secondly, it is necessary to establish a product recall insurance system. Because the scale of Chinese production enterprises is relatively small, the ability to resist risks is low, and the cost of recall is high, which makes it difficult for most enterprises to bear, so the establishment of a product recall insurance system can greatly reduce corporate losses; finally, it is necessary to improve the liability system. In order to ensure the effective implementation of the recall system, it is necessary to clarify the responsible entity, stipulate the liability consequences of different levels of standards, compensation for consumers, and necessary penalties that must be accepted when not actively recalling, and increase compensation.
Innovate regulatory approaches with big data
Chen Yinjiang believes that the consumption of elderly health care products involves multiple departments, and there are indeed certain difficulties in supervision, so it is necessary to strengthen joint supervision, innovate regulatory methods and methods, and further enhance the effectiveness of supervision.
He further explained to reporters that the methods and methods of health care product fraud emerge in an endless stream, and cracking down on it requires coordination between market supervision at all levels, public security and other relevant departments, so it is necessary to further establish and improve the joint supervision mechanism. For example, build an informatization and networked law enforcement supervision system between multiple departments. Comprehensively use Internet technology and big data means to improve the efficiency of health food safety supervision and reduce the operating costs of the regulatory system.
Chen Yinjiang also believes that social co-governance is an important means to solve the problem of elderly health care products. Supervise and guide relevant health product operators to operate in good faith and law-abiding, do not do false and exaggerated publicity, and do not sell unqualified or expired health care products; support and encourage the news media to increase supervision and exposure of the problem of illegal operation of health care products, and consciously do not publish false exaggerations or other illegal health product advertisements. "Relevant departments should also further smooth the channels for consumer rights protection, encourage and facilitate the elderly to make timely complaints and reports when they encounter problems, and safeguard their rights according to law." Chen Yinjiang said.
The civil code is implemented, and the litigation has a law to rely on
Before the implementation of the Civil Code, although the Consumer Rights and Interests Protection Law gave consumer associations at or above the provincial level the right to initiate consumer civil public interest litigation against business operators who infringed on the legitimate rights and interests of many unspecified consumers or had acts that endangered the public interest such as endangering the personal and property safety of consumers, the litigation claims were generally only to stop the infringement, remove the obstruction, eliminate the danger, and make a formal apology, etc., and in the punitive public interest litigation, it was difficult to promote due to the lack of specific legal support.
Chen Yinjiang introduced that the above situation has changed after the implementation of the Civil Code. The Civil Code clearly stipulates a punitive damages system in three types of situations, of which "intentional infringement of the intellectual property rights of others, serious circumstances" and "knowing that the product defect is still produced or sold, or failure to effectively take remedial measures such as stopping sales, warnings, recalls, etc., resulting in serious consequences", both of which may involve food and drug consumption issues such as health care products. "It can be said that the Civil Code not only provides substantive legal support for public interest litigation in the field of food and drugs, but also provides a legal basis for initiating punitive public interest litigation and enhancing the deterrent power of public interest litigation." It is hoped that the procuratorial organs can implement the provisions of the Civil Code on the right to claim punitive damages, do a good job of connecting with punitive damages for private interest litigation, strengthen the exploration and promotion of punitive damages for public interest litigation in the field of food and drug safety, and punish food and drug violations that infringe on the legitimate rights and interests of unspecified majority of consumers. Chen Yinjiang said.
(This article was published in the cover story section of the February 216 issue of Corporate Magazine)
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