21st Century Business Herald reporter Li Yumin intern Zhao Yue reported from Beijing
"If, because they have falsified before, they are no longer considered consumers when they re-consume, then the civil rights capacity of the 'professional counterfeiters' is no different from being deprived, their rights in the field of consumption will not be remedied by law, and their consumer status is tantamount to being sentenced to death in law, which violates the legal provisions of equality of civil rights capacity and seriously violates the basic principles of law." Judge Sun Zhiyuan of the Intermediate People's Court of Qingdao Municipality, Shandong Province, who once wrote the judgment of the "earth-shattering anti-counterfeiting text", once ruled another case in favor of 10 times the compensation of "professional counterfeiters", and continued to support the fight against counterfeiting in the food field, which won universal praise.
This case is a dispute between the appellant Li Mou and the appellee Fuzhou Aipinhui Trading Co., Ltd. over the information network sales contract. In this case, Li Mou purchased 12 boxes of coffee on the Internet in two parts, spending a total of 3874 yuan. After receiving the goods, Li Mou ate 1 packet and was slightly unwell, so he sent the sample to the testing agency, and the tadalafil (Viagra) content of the sample was 766 μg/g.
As a result, Li sued the seller to the court on the grounds that coffee contained drugs, violated the Food Safety Law of the People's Republic of China, and demanded 10 times compensation, resulting in losing the lawsuit in the first instance, and after appealing in the second instance, Li was supported and was awarded 38740 yuan. Although the subject matter of this case is not large, the debate on whether to support "professional counterfeiters" has once again attracted the attention of the legal profession.
Should "professional counterfeiters" make a profit?
The first instance of The Li case held that the price of the coffee purchased by the plaintiff was higher than that of ordinary coffee, and it was purchased twice in a month, which was inconsistent with normal and rational consumer behavior. In addition, the plaintiff frequently filed a case for high compensation on food safety issues, so it was believed that the plaintiff belonged to the "professional counterfeiter" and did not belong to the consumer. This is also the reason why in the current judicial practice, many courts reject the claims of counterfeiters.
The court of second instance held that although Li had falsified, when re-consuming, Li had the same civil rights capacity as the consumer, and he needed legal remedies when his rights in the field of consumption were infringed, and the appellant believed that the appellant did not purchase the products in this case for the necessities of life, and there was no factual basis.
The court of second instance also held that the food in this case contained prescription drugs, did not have an inspection and quarantine certificate for imported goods, did not have a Chinese label, and the appellee did not ask for a food business license or inspection and quarantine certificate from the purchased home, which was sufficient to determine that it was food that did not meet food safety standards, and the appellee knew that the seller should pay punitive damages.
According to reports, the first heated discussion of "professional counterfeiters" was that in the 90s of the last century, Wang Haizhi doubled his compensation for buying fakes and became the first person in China to fight counterfeits, and gradually embarked on the road of professional counterfeiters. In 1995, Wang Hai became the first to receive the "Consumer Counterfeiting Award" from the China Consumer Protection Foundation. Economist Wu Jinglian inscribed on the book presented to Wang Hai: "Market Scavenger."
According to the 2018 data of the national market supervision department, 1.682 million online shopping complaints were accepted, an increase of 126.2% year-on-year. Recovered 3.117 billion yuan in economic losses for consumers. Some media reported that professional counterfeiters have promoted consumer rights protection to a certain extent.
At the end of 2013, the judicial interpretation issued by the Supreme People's Court provided a guarantee for the litigation of professional counterfeiters: "If a dispute arises over the quality of food or drugs, the purchaser claims rights against the producer or seller, and the producer or seller defends on the grounds that the purchaser knows that there are quality problems with the food or drug, the people's court will not support it." ”
However, as "cracking down on counterfeiting" has become a business model, some counterfeiters have abused their right to sue, and problems such as suspected extortion have also been exposed. Regarding professional counterfeiters who know how to buy fakes, whether they have gained support for making profits through high claims has also emerged.
In 2017, the General Office of the Supreme People's Court indicated in its reply to Recommendation No. 5990 of the Fifth Session of the Twelfth National People's Congress that the emergence of professional counterfeiters has enhanced consumers' awareness of their rights. But at this stage, more and more professional counterfeiters are not to purify the market, but to use laws and regulations for profit. According to the Reply Opinions, the Supreme People's Court "may consider gradually restricting the profit-making anti-counterfeiting behavior of professional counterfeiters in situations other than the purchase of food and medicine."
However, some people believe that food safety is more harmful than the profit of professional counterfeiters, and the claims of professional counterfeiters should be supported.
Are "professional counterfeiters" consumers?
Even in the field of food and drugs, there are many obstacles to the claim of professional counterfeiters. According to the Rule of Law Daily, courts in various places have different judgments on food and medicine anti-counterfeiting cases, with nearly 30% supporting punitive damages and more than 70% not supporting it, with the difference focused on "whether professional counterfeiters can be identified as consumers".
Are professional counterfeiters consumers? 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 uses the word "purchaser", which avoids the characterization of professional counterfeiters, and under the complexity of legal provisions, there will inevitably be qualitative disputes in practice.
According to Article 2 of the Law of the People's Republic of China on the Protection of Consumer Rights and Interests, "Where consumers need to purchase or use goods or receive services for daily consumption, their rights and interests are protected by this Law." ”
The 21st Century Business Herald reporter looked up the judgments on the Chinese judgment documents online about food and medicine and professional counterfeiters and found that there are different opinions on how to use evidence to define whether a product is food and whether it is a necessity of life. In a certain case, the court of second instance held that the appellee had no factual and legal basis to prove that the appellant did not buy coffee for the necessities of life, and held that Li was a consumer. And because of the lack of evidence of "necessities of life," behaviors and claims cannot be supported. In the case between He and Xiamen Tongyun Industry and Trade Co., Ltd., He did not have sufficient evidence to prove that he purchased the liquor involved in the case due to production and operation needs and the goods purchased were food, believing that He was not a consumer, so his actions and claims were not supported.
Judge Sun Zhiyuan elaborated on the question of whether professional counterfeiters are consumers in the case of Han mou and Licang District Duomei Wholesale Supermarket, and the judgment wrote: "The criterion for judging consumers is not based on the subjective state of the purchasing subject, but on the nature of the subject matter."
Knowing that the fake is buying fake, can I ask the merchant to compensate? Rule of Law Daily reported that punitive damages need to meet two legal requirements: one is that the operator subjectively knows that the food does not meet the food safety standards and misleads consumers, that is, the operator subjectively knows and has fraudulent behavior; the other is that it objectively does not meet the food safety standards and materially affects food safety. The premise is that "the food does not meet food safety standards". According to media reports, at this stage, the act of knowing and buying fakes or professional counterfeiting in the field of food and medicine is not prohibited by law.
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 stipulates that "if a dispute arises over the quality of food products and drugs, and the purchaser claims rights against the producer or seller, and the producer or seller defends the purchase on the grounds that the purchaser knows that there are quality problems in the food or drugs, the people's court will not support it" It can be seen that with regard to disputes over food and medicine, the producer or seller cannot defend itself as a "professional counterfeiter".
"Cracking down on counterfeiting for profit" vs "food is toxic" Who is more harmful?
This series of disputes over "professional counterfeiter" claims has never stopped. As a judge, Chief Judge Sun Zhiyuan has taken a clear stand in defending food safety and supporting professional counterfeiter claims, and has once been "sentenced to fame". In the second-instance judgment of the information network sales contract dispute between Li mou and Fuzhou Aipinhui Trading Co., Ltd., he once again used countless golden sentences to explain his views, and also won wide praise, becoming the "net red judgment" that the circle of legal personnel brushed the screen.
The judgment mentions that through trial practice, this court has gradually understood why the Food Safety Law of the People's Republic of China has placed the foothold of food safety on food safety standards: producers who produce food that do not meet food safety standards or business operators who know that food that does not meet food safety standards should pay punitive damages, and also understand why the relevant judicial interpretations stipulate that "consumers require business operators to bear punitive damages without premise on personal injury". This is like the relationship between the city and the moat, one person throws a stone into the moat, the city cannot be lost, and two people cannot throw it, but if everyone throws stones at the moat universally, repeatedly, and adultly, the moat will be filled sooner or later, and the city will not be far from falling.
Judge Sun Zhiyuan believes that food safety is the city, and food safety standards are the moat. When food safety standards are not taken seriously, are widely and repeatedly violated, there is no food safety. To manage food safety well, we must use "the most stringent standards, the strictest supervision, the most severe punishment, and the most serious accountability".
As for the claimant's increase in the court's caseload and workload, Judge Sun Zhiyuan also said in his judgment that "the people who increase the workload are those who produce food that does not meet food safety standards and those who know that food that does not meet food safety standards are still sold, not consumers." Just as the masses of the people send criminals to the police station, it is the criminals who add to the workload of the police station, not the twisters, and the police station must not turn the twisters away because of the heavy workload, or let the criminals go unpunished because of the heavy workload."
There is also such an easy-to-understand reasoning in the judgment that if consumers can be like electronic snaps on traffic lights, so that those who run red lights can be punished in a timely manner, the production and sale of food that violates food safety standards will be less and less, until they disappear. The so-called "professional counterfeiter" can play the role of an electronic capture device, so that the operator knows the truth that "do not reach out, reach out and be caught". "Professional counterfeiters" have played the role of security inspectors and illegal recorders for the society and the market free of charge, and should be recognized.
In his judgment, Judge Sun Zhiyuan denounced: "Only those who produce food that does not meet food safety standards and those who know that food that does not meet food safety standards are still sold hate 'professional counterfeiters'." Consumers who do not know how to do it will not fight counterfeiting, and if knowledgeable consumers are not allowed to crack down on counterfeiting, is the Consumer Rights and Interests Protection Law still the Law on the Protection of Consumers' Rights and Interests? That's a 'fake' and 'fake' protection law! ”
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