The "consumer" purchased 46 expired bulk salted duck eggs, issued 46 shopping receipts, and claimed 46,000 yuan, and the court ruled that the ......

In recent years, for-profit professional claims have been characterized by large-scale, gang-based, family-oriented, and programmatic behaviors, which have plagued enterprises for a long time and have had a negative impact on the business environment. To this end, the Shanghai Municipal Consumer Protection Committee organized a special investigation, and strived to identify the problems and crux of the problem, and put forward countermeasures and suggestions. Through the analysis of typical cases, it is suggested that from the perspective of judging whether it is "necessary for living consumption", punitive damages liability should be applied in accordance with the law, so as to realize the screening and regulation of for-profit professional claims.

Case: Zhang purchased 6 cooked bulk salted duck eggs from a fresh food company in Shanghai, and the defendant issued 6 shopping receipts for 6 salted duck eggs, and the salted duck eggs had expired for 1 day. The next day, Zhang purchased the same batch of 40 salted duck eggs from the company, and asked the operator to issue a total of 40 shopping receipts, and the batch of salted duck eggs had expired for 2 days. Subsequently, the plaintiff complained to the market supervision and administration department on the grounds that all 46 salted duck eggs had expired, and after mediation, it filed a lawsuit with the court. In accordance with the provisions of Article 148 of the Food Safety Law on punitive damages, Zhang requested the defendant to refund the plaintiff's purchase price of 101.20 yuan, calculated according to the minimum compensation of 1,000 yuan for each purchase of expired duck eggs, with a total compensation of 46,000 yuan. The trial court held that Zhang purchased 46 salted duck eggs in 46 settlements within 2 days, and demanded a total of 46,000 yuan in punitive damages according to the standard of 1,000 yuan for each purchase of expired salted duck eggs, which was obviously inconsistent with the spirit of the punitive damages system of the Food Safety Law of the People's Republic of China, and also violated the principle of good faith, and should not be supported. At the same time, the court held that Zhang's purchase of 46 salted duck eggs did not significantly exceed the reasonable living consumption needs of individuals and families from the perspective of total volume. In the end, within the scope of "reasonable living consumption needs", the people's court supported Zhang's claim for compensation of 1,012 yuan based on the total price of 101.20 yuan actually paid.

One of the common methods used by for-profit professional claimants is to buy 10,000 catties of rice at a time, and some spend tens of thousands of yuan to buy a huge amount of chopsticks, and then claim punitive damages on the basis of identification labels and publicity issues. Driven by profits, the number of for-profit occupational claims has remained high for a long time, and the negative impact has become increasingly prominent. A leading e-commerce platform found through a questionnaire survey that 68% of the 8,856 merchants on the platform had encountered professional claims, and more than 4,400 merchants paid a total of more than 3,000 yuan to professional claimants. A fresh food operator compensated 1,214 accounts for 566,000 yuan in compensation within one year due to food quality, foreign bodies and other issues. In the past three years, there have been nearly 800 people who have filed more than 100 professional claims in the field of market supervision in Shanghai. Based on 10 appeals, a major economic province in the south can identify more than 10,000 professional whistleblowers with professional claims.

In this case, Zhang clearly knew that the food had expired and purchased the same product from the same business operator multiple times and in separate orders to achieve a high claim, and his profit-making purpose was clearly revealed. We believe that the purchase of 46 duck eggs can be regarded as a reasonable need for daily consumption, but the deliberate purchase of expired duck eggs based on one duck egg in 46 settlements is not for the purpose of eating, but as a part of the claim, and the overall behavior is profit-making, which is a disguised business and profit-making behavior, and should be excluded from the profit-making purpose to exclude its identity as a "consumer" for the needs of daily consumption.

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From the perspective of national policies and regulations, the "Guiding Opinions of the State Council on Strengthening and Regulating Supervision During and After the Event" clearly states that for-profit "anti-counterfeiting" and claims should be regulated in accordance with the law. The Interim Measures for the Handling of Complaints and Reports on Market Supervision and Administration issued by the State Administration for Market Regulation stipulate that "the purchase or use of goods or the receipt of services that are not necessary for daily consumption" shall not be accepted. Determining whether a for-profit professional claim meets the concept of "consumer" under the Consumer Rights and Interests Protection Law involves not only the purchaser and the operator, the private interest behavior and the public welfare effect, economic freedom and economic order, but also directly related to judicial authority and social fairness and justice. This kind of professional claim behavior of "making profits in the name of cracking down on counterfeiting" has clearly deviated from the original intention of legislation to protect the legitimate rights and interests of consumers, and is contrary to the legislative principle of good faith, and should be regulated in accordance with law.

The first is to improve the top-level design and realize the law. The Regulations on Food Safety Supervision in the Shenzhen Special Economic Zone (2018) stipulates that: "...... If it is found that the complainant has exceeded reasonable consumption or has demanded compensation or rewards as its main source of income, the investigation may be terminated and relevant clues may be included in the scope of food safety risk monitoring. However, this does not apply if it may cause a food safety accident or if it is suspected of committing a crime. "The Regulations of Shanghai Municipality on the Protection of Consumer Rights and Interests (2022) stipulate that for-profit professional claims and professional reporting behaviors shall be regulated in accordance with the law, and extortion in the name of cracking down on counterfeiting and shoddy products shall be investigated and punished. Breakthroughs have been made in relevant regulations, but the influence of local regulations is still insufficient. It is suggested that the form of legislation and regulations at the national level should be used to regulate for-profit professional claims. Clarify the basic circumstances of "not for the needs of daily consumption" such as knowingly buying fake and malicious claims, and exclude for-profit professional claims, and uniformly form the criteria for determining for-profit professional claims at the national level, releasing a strong signal of the chaos of knowingly buying fake and "fake fighting", and providing a higher-level legal basis for local regulation of for-profit professional claims.

The second is to improve judicial interpretations and reduce the space for profit. The 2013 Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Food and Drug Dispute Cases uphold a supportive attitude for those who buy and claim compensation despite knowing that there are quality problems in food and drugs. In 2017, the General Office of the Supreme People's Court pointed out in its reply to Recommendation No. 5990 of the Fifth Session of the 12th National People's Congress that it is not appropriate to extend the special policy on food and drug disputes to all areas of consumer protection. At the end of November 2023, the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases of Disputes over Punitive Damages over Food and Drug (Draft for Comments) was released to the public for comments, making clear provisions on repeated claims, continuous purchase claims, and the determination of the base amount of punitive damages, so as to further standardize the application of punitive damages in the field of food and drugs. It should be said that the draft judicial interpretation has taken a valuable step compared with the relevant provisions in 2013, but there is still a lack of corresponding mechanisms in areas such as advertising and product quality where for-profit professional claims are concentrated. It is suggested that the substantive purpose of the purchaser should be determined by combining subjective purpose and objective behavior, and distinguish between "for the needs of daily consumption" and profit-making. For example, where a party clearly knows that there is a defect in the product or publicity, but still repeatedly purchases it, and where the number of complaints, reports, or lawsuits is relatively large, and exceeds a certain number of times, it may be found to be not "necessary for daily consumption", so as to promote the uniformity and scientificity of the determination of whether or not the goods are "necessary for daily consumption" by all departments, and jointly create a positive legal environment, market environment, and business environment.

The third is to clarify the scope of application and purify the market environment. The punitive damages system is the "soil" on which professional claimants rely for their survival, and it is necessary to persist in taking "for the needs of daily consumption" as the premise of punitive damages in the consumer field, and explore the establishment of a hierarchical and categorical application of the punitive damages system. Actively implement punitive damages for appeals that reflect toxic and harmful foods and other products that involve the lives and health of the masses or major systemic product quality risks; except for food and drugs, the application of punitive damages liability in other consumer fields needs to be based on the premise of fraud, and pay attention to the application of the requirement that "intentionality" is the constitutive element of fraud; for repeated malicious claims of "knowingly buying fakes", such acts of violating the principle of good faith, punishing evil with evil, and quenching thirst with drinking water should not be supported; In principle, punitive damages will not be supported in cases such as advertising defects. In addition, a corresponding credit punishment system shall also be established for abuse of litigation rights to complain and report, and a large amount of malicious claims for administrative and judicial resources, to increase the cost of untrustworthiness for relevant personnel, and to effectively protect the lawful rights and interests of ordinary consumers and market entities.

Source: Shanghai Municipal Consumer Protection Commission