An old woman in Chongqing sells traditional homemade buckle meat online, and a Heilongjiang man in Chongqing, after buying 150 bowls, said that it was a "three-no product", sued for a refund and 10 times the claim, and later the court ordered the seller to refund all the payment and compensate the other party 10 times, totaling about 50,000 yuan. On April 22, the seller's lawyer said they were not satisfied with the verdict and would apply for a retrial next. A doctor of law said that entering the market in the name of e-commerce must comply with the law.
In the face of the verdict, "Mother Mao" was very sad. Screenshot of the 1st eye video
The store received a court summons for selling the meat online
The old woman, surnamed Mao, is 65 years old and lives in Maguan Town, Zhong County, Chongqing City, and is a brand owner of the local "Mao Mama" local specialty management department, and the investor is her daughter-in-law, Ms. Wang.
On April 22, Ms. Wang told reporters that her mother-in-law has a good hand, and will make button meat (including tamales, roasted white and back pot meat) as well as pickles, slag sea peppers, wheat sauce, wind bean drums, etc. Relatives and friends say good after eating.
Buckle meat. The pictures are based on Ms. Wang
She said that they had been working in the county seat of Zhong county in Chongqing, and in early 2017 she and her husband germinated the idea of returning to their hometown to start a business.
In July 2017, the family set up the "Zhongxian Maoma Native Souvenirs Management Department" and obtained a business license, and then began to sell souvenirs and delicacies from their hometown, and later they opened a micro-store online to sell these products.
Ms. Wang said that they made original food, without adding any preservatives and additives, and produced exactly according to the methods of grandparents and parents in that era.
What they didn't expect, however, was that one day in September 2021, they suddenly received a summons from the Hechuan District Court in Chongqing. It turned out that some people sued them for allegedly producing "three no products", and took the store and Ms. Wang to court, demanding refunds and claims.
The reporter learned from the interview that the man who sued them was surnamed Shao, 47 years old this year, a native of Suihua City, Heilongjiang Province, and now lives in Jiangbei District, Chongqing City.
Man purchased 150 copies sued for refund claims
Shao said in the complaint that he purchased a batch of food on the micro-store opened by the business department in mid-July 2021, including 50 portions of tamales, roasted white, and wind tempeh back to the pot meat, a total of 150 copies, each with a unit price of 30 yuan after discount, and used a micro-store cash red envelope of 0.84 yuan when paying, a total of 4499.16 yuan, and the delivery address of the goods was the front desk of the Vienna Hotel on Nanjin Street, Hechuan District, Chongqing, and the consignee was himself.
Button meat to be packaged.
He said that the product was used as a gift for relatives and friends to eat, the roasted white and tamales were sealed in a small earthen bowl with a vacuum transparent bag on the outside, and the wind tempeh back to the pot meat was sealed with a golden aluminum foil lunch box and sealed.
"After my friend received these foods, the feedback products were a bit like Sanwu foods." Shao said that after careful inspection, it was found that the food packaging did not indicate the production date, shelf life, manufacturer, manufacturer contact information, ingredient list, SC number and other basic contents, which obviously belonged to the "three noes" food.
He said that the merchants, as sellers, failed to fulfill their reasonable review obligations, resulting in the circulation of "three noes" food in the market.
Shao requested the court to order the two defendants to refund his purchase price of 4499.16 yuan and compensate him 44991.6 yuan, a total of 49490.76 yuan. At the trial, the "Zhongxian Maoma Native Specialties Business Department" as the defendant argued that the products involved in the lawsuit were legally qualified products produced and sold by them, not "three noes" products, these products are food produced by small workshops, not pre-packaged foods, and do not need to implement the relevant provisions of pre-packaging is labeling, these foods belong to legal products produced and operated by small workshops with legal production and sales channels, the source of production and sales channels is legal, and at the same time, they are neither pre-packaged foods nor foods that do not meet food safety standards. And it has not caused personal injury to the consumer, and there is no need to bear punitive liability.
They believed that Shao's relevant litigation claims lacked factual and legal basis, and requested the court to reject his litigation claims.
After the trial, the Hechuan District Court ascertained the facts that the defendant "Maomama Local Specialties Business Department of ZhongXian County" was a sole proprietorship enterprise in food production and food sales (bulk food, including refrigerated and frozen food), and had a food management license and a registration certificate for a small food production and processing workshop.
On July 12, 2021, the plaintiff, Mr. Shao, purchased a total of 150 copies of tamales, roasted white, and wind tempeh back to the pot on the micro-store opened by the defendant, and paid 4499.16 yuan, and after Shao received these products mailed by the defendant, he videotaped the whole process of receiving the goods.
After investigation, the roasted white and tamales sold by the plaintiff to Shao were sealed and packaged in a small earthen bowl with a vacuum transparent bag on the outside, and the wind bean drum back to the pot meat was sealed with a golden aluminum foil lunch box and pasted in sealed packaging. However, these packagings do not have the product name, production time, production operator name and address, shelf life and other identification.
After receiving the goods at the hotel in Hechuan District, Chongqing, Shao believed that the products sold by the defendant were "three noes" products, so he sued on August 24, 2021.
The court first-instance trial of the store refund compensation of about 50,000 yuan
The Hechuan District Court of Chongqing Municipality held that the two parties formed a contract of sale and purchase, but because none of the food products sold by the defendant had any indications such as product name, production time, name and address of the producer and operator, shelf life, etc., the defendant's sales behavior violated "Where a small food workshop produces and processes bulk food, it shall use labeling or listing on the container containing the food to identify the name of the producer, product name, production date, shelf life, storage conditions and other information; if the food is simple packaging, the address shall also be marked on the packaging. Contact information, registration certificate number, ingredient list (ingredient list), etc., and clear and eye-catching identification of small workshop food words", but also violates the relevant provisions of the Food Safety Law "food business operators selling bulk food, should indicate the name of the food, production date or production batch number, shelf life and the name of the producer and operator, address, contact information and other contents on the container and outer packaging of the bulk food", therefore, these do not have product names, production time, production operator names and addresses, The food identified by the shelf life and other labels belongs to the food that does not meet the food safety standards, and Shao asked the defendant to refund the purchase price of 4499. The court supported the litigation claim of 16 yuan in accordance with the law.
For the plaintiff Shao's claim that the defendant compensate 44991.6 yuan, according to the relevant provisions of the Food Safety Law, "if the consumer suffers damage due to food that does not meet the food safety standards, he can claim compensation from the operator for the loss, or he can claim compensation for the loss from the producer." Producers and operators who receive claims for compensation from consumers shall implement the system of first responsibility, pay compensation in advance, and must not prevaricate; if it is the responsibility of the producer, the business operator has the right to recover from the producer after compensation; if it is the responsibility of the business operator, the producer has the right to recover from the business operator after compensation. In addition to claiming compensation for losses, consumers may also demand compensation from producers or operators for compensation for food that does not meet food safety standards; if the amount of additional compensation is less than 1,000 yuan, it shall be 1,000 yuan. However, except for the fact that the labels and instructions of the food do not affect food safety and will not mislead consumers", the defendant in the case knew that the tamales, roasted white, and tempeh back to the pot meat produced and operated by himself should be labeled and still not labeled and sold, which belonged to the production and operation of food that did not meet food safety standards, so the court also supported the plaintiff Shao's demand that the defendant pay ten times the price, that is, 44991.6 yuan in compensation.
On November 18, 2021, the Hechuan District Court of Chongqing Municipality pronounced a judgment in the first instance that the defendant "Zhongxian Maoma's Native Specialties Business Department" refunded the plaintiff Shao's purchase price of 4499.16 yuan and compensated the plaintiff 44991.6 yuan.
The store complained that the customer was a professional counterfeiter and not a consumer
After the first-instance judgment was pronounced, Mao's mother-in-law's family appealed to the Chongqing Municipal No. 1 Intermediate Court, requesting that the first-instance judgment be revoked and shao's entire litigation claims rejected.
Verdict of first instance.
They claimed that the products involved in the case were legally qualified bulk foods produced and sold by them, not prepackaged foods, and the production and sales channels were legal, and there was no "knowing" situation as stipulated in Article 148 of the Food Safety Law. The first-instance judgment did not have evidence to prove that the food they produced and sold did not meet the food safety standards Shao's purchase behavior had a profit-making purpose, and did not belong to the consumer, and should not support the request for ten times punitive damages.
Shao replied that the facts of the case were clear and the facts of the case were simple and clear.
Mou Jianmin, a lawyer at Chongqing Shengteng Law Firm, who is the agent of the "Zhongxian MaoMa's Local Specialties Business Department", said that the court of first instance found that the facts were wrong, and the products involved in the case should not be judged to be foods that did not meet food safety standards.
He told reporters that the court of first instance determined that the product involved in the case was "food without product name, production time, name and address of the producer and operator, shelf life, etc." And then determined that it was a food that did not meet food safety standards, which was an error in the determination that the objective facts of the case had not been ascertained.
He said that the appellant, as a small food production workshop, had prepared three large freezers in its business premises, specifically for storing its products such as flavored cooked meat products for sale, and since its sales channels were mainly based on e-commerce, the Internet and other platforms, they were all customized according to daily orders, and the appellant was also based on the relevant requirements of the management specification document "Chongqing Food Production and Processing Small Workshops and Food Vendors Management Regulations" implemented by the small workshops. Labels corresponding to the products produced each day are posted on the freezer containing its custom-produced products, and the date of production on the day is truthfully filled in for ease of management and shipment.
He said that Shao was a professional counterfeiter, and he was fully aware that the product involved in the case was bulk food, and bulk food did not need to be labeled on the packaging.
Lawyer Mou Jianmin also said that the court of first instance applied the law incorrectly, and it was even less appropriate to apply the tenfold punitive damages rule, "from the perspective of public order and good customs and good faith and friendliness, the tenfold punitive damages ordered by the appellant in this case are also unfair and do not conform to the core values of socialism." ”
The second instance upheld the original judgment to reject the store's appeal
During the second instance trial of the Chongqing No. 1 Intermediate People's Court, the parties did not submit new evidence. The facts and evidence ascertained at the second-instance trial are the same as those in the first instance, and the court confirms them.
The court held that the focus of the dispute in the second instance was whether the product involved in the case was a product that did not meet the food safety standards and whether the appellant should bear punitive compensation liability, and combined with the evidence of the whole case and the opinions stated by the appellant and its entrusted agent of litigation in the second instance, the court judged that the product involved in the case did not identify the necessary product information such as producer information and product shelf life on its outer packaging at the time of sale, which violated the relevant regulations, and the product involved in the case should be determined to be a product that did not meet the food safety standards. The appellant also had no objection to the above problems in the identification on the product packaging at the first instance trial, and although the relevant information submitted in the second instance showed that the product labeling had been improved, it could not negate the basic fact that the product involved in the case violated the mandatory provisions of laws and regulations when it was sold. The appeal into the sale of products that do not meet food safety standards should bear corresponding legal liabilities, so the appellee's claim that the appellant bear punitive damages is supported in accordance with law.
The appellant's appeal opinion that Shao's purchase had a profit-making purpose and was not a consumer, and should not support the request for ten times punitive damages, was contrary to Article 3 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Food and Drug Dispute Cases.
On April 7, 2022, the Chongqing No. 1 Intermediate People's Court rendered a final judgment, rejecting the appeal and upholding the original judgment.
"We are not satisfied with such a verdict, and the next step will be to appeal." Lawyer Mou Jianmin said that he would strive to retry the case.
Legal experts remind:
Even small business must be operated in accordance with laws and regulations
Du Jiangyong, a doctor of law in Chongqing, told reporters that individual farmers do not need to obtain a license for food circulation to sell their self-produced edible agricultural products, but the law on commodities that enter the circulation field such as "buckle bowls" has clear provisions, and it is mandatory, requiring that the product name, producer and product matters must be indicated.
He said that it is okay to buy, sell or give away a small amount of agricultural products between relatives and friends, and once it enters the market in the name of e-commerce, it must comply with relevant laws and regulations, otherwise it will be punished.
He reminded that without rules and regulations, e-commerce operators engaged in business activities should follow the principles of voluntariness, equality, fairness and good faith, abide by laws and business ethics, participate in market competition fairly, fulfill their obligations in the protection of consumer rights and interests, environmental protection, intellectual property protection, network security and personal information protection, assume responsibility for the quality of products and services, and accept government and social supervision. The times are developing, "craftsmanship" goes out, "thinking, understanding" must also keep pace with the times, tens of millions of roads, abide by the law first, even small business of e-commerce must also operate according to the law, in accordance with the rules, once violated by laws and regulations, will be punished.
Zhao Liangshan, a senior partner at Shaanxi Hengda Law Firm and a well-known public interest lawyer, said that article 148 of the Food Safety Law stipulates that "if consumers suffer damage due to food that does not meet food safety standards, they can claim compensation from the operator for losses or from the producer for compensation for losses." In addition to claiming compensation for losses, consumers who produce food that does not meet food safety standards or who operate food that does not meet food safety standards may also demand compensation from producers or operators for compensation of ten times the price or three times the loss; if the amount of additional compensation is less than 1,000 yuan, it shall be 1,000 yuan. "The punitive provision of the law is 10 times the compensation, which is based on the damage suffered by the consumer, and it is obviously unfair to ask the seller to bear 10 times the damage if the consumer does not eat or eats but is not injured."
Zhao Liangshan said that although the "Zhongxian Maoma Native Products Business Department" is a wholly-owned enterprise in food production and food sales (bulk food, including refrigerated and frozen food), etc., with a food management license and a small workshop registration certificate for food production and processing, because the products involved in the case did not mark the necessary product information such as producer information and product shelf life on their outer packaging at the time of sale, it should be determined that the products involved in the case are products that do not meet food safety standards, and because consumers have not been damaged, so "Zhongxian Maoma Native Products Business Department" There is no need to bear 10 times the compensation, but the "Zhongxian Maoma Native Souvenirs Business Department" should bear the responsibility of returning the goods and refunding the fee.
He suggested that if the "MaoMama Native Specialties Business Department of ZhongXian County" is not satisfied with the second-instance judgment, it can apply for a retrial according to Article 205 of the Civil Procedure Law, "the parties applying for a retrial shall submit it within six months after the judgment or ruling takes legal effect." "Appeals are filed with the higher courts in accordance with the law to safeguard their legitimate rights and interests."
Response:
Only about 30 portions of the 150 bowls of button meat were eaten
To the outside world, some people questioned that Shao Mou was a professional counterfeiter, he told reporters that he was only a consumer who understood the law, not a professional counterfeiter, he was defending his rights for the health of the people, doing good deeds, and protecting his own rights and interests.
Dishes of the business department.
For the 150 pieces of buckled meat, how did Shao handle it? Shao told reporters that after the purchase, they only ate about 30 parts, and the rest were all stored in the refrigerator, which is still there, "Double-door refrigerator, which can be returned to them later, or destroyed in public." "At that time, they packed the button meat in more than a dozen foam boxes and expressed them to Hechuan."
Shao also said that on the morning of April 22, he had sued Ms. Wang in the Chongqing Zhong County Court for allegedly violating his right to reputation, "she said that I was suspected of extortion and extortion, which was completely spreading false information." Huashang Daily reporter Chen Youmou Huang Ping Editor Yang Dehe
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