Imported red wine is not labeled in Chinese and is cracked down on counterfeiting, where is the way to go for professional anti-counterfeiting?

Original title: The professional anti-counterfeiting with mixed reputations, where is the way forward

A professional anti-counterfeiter is a person who makes a profit by purchasing or consuming counterfeit and shoddy products, obtaining punitive damages in accordance with the provisions of the law, or reporting illegal acts. Along the way, they are full of controversy and mixed reputations, and they are known as "woodpeckers" and "market whistleblowers", cracking down on counterfeiting and shoddy products and purifying the market; At the same time, there are also voices who believe that they abuse the right to sue for profit, promote malicious claims and even extortion, and occupy a lot of administrative law enforcement and judicial resources.

At this year's "3.15" party, food safety issues such as "chicken bone puree" and "plum vegetable button meat" refreshed consumers' cognition, and the "Regulations on the Implementation of the Law of the People's Republic of China on the Protection of Consumer Rights and Interests" (hereinafter referred to as the "Regulations") were promulgated on the same day. For the first time, the "Regulations" stipulate that complaints and reports shall comply with laws, regulations and relevant provisions, and shall not seek improper benefits, infringe upon the legitimate rights and interests of business operators, and disrupt the order of the market economy; Those who fraudulently obtain compensation or extortion must bear administrative responsibility and even criminal responsibility. Many legal workers interpret that this is to restrict professional anti-counterfeiting from the level of policies and regulations. The "Regulations" will come into force on July 1, where is the road to professional anti-counterfeiting? The reporter conducts an interview.

example

Imported red wine without Chinese labels was cracked down

Before the May Day holiday, a liquor store in Licang District encountered an anti-counterfeiting storm. "The two young men bought three bottles of red wine, did not bargain, and recorded the whole process. A few days later, the industrial and commercial office came to the door to enforce the law, saying that some consumers complained that the red wine they bought did not have a Chinese label, and demanded investigation and compensation. Mr. Cai, the owner of the liquor store, told reporters that he learned that he had encountered a professional crackdown, and after several rounds of negotiations, he finally returned the wine and refunded and compensated 800 yuan privately.

"Although imported red wine is not labeled in Chinese, it must have been inspected by customs, and most consumers want to buy imported red wine without labeling, but after this 'crackdown', I made up the Chinese label." The liquor store has been in business for three years, and this is the first time I have dealt with a professional anti-counterfeiter. Mr. Cai said that he chatted with friends who opened a store before, and heard them talk about professional counterfeiters, but he didn't expect to meet him.

In recent years, food labels have been found as soon as they are not careful, and they have become the main firepower of professional anti-counterfeiters. The mainland food safety law stipulates that imported pre-packaged food should have a Chinese label, and the label should meet the mainland's food safety standards, and the import of Chinese labels that do not meet the requirements is prohibited. As early as 2018, another liquor store in Licang District was subjected to professional counterfeiting because imported red wine did not have a Chinese label. At that time, Han Fukun, a professional anti-counterfeiter, bought 6 bottles of red wine in two bottles of red wine in Duomei Supermarket in Licang District, spending a total of 20,160 yuan. Han Fukun's video of the purchase process showed that there was no Chinese label on the bottle, and then he filed a lawsuit with the Licang court, according to the food safety law, sellers can demand a refund of 10 if they produce and sell food that does not meet food safety standards, causing damage to consumers. However, this lawsuit was full of twists and turns, and after three trials, this time the professional anti-counterfeiter not only lost the lawsuit, but also bore more than 4,600 yuan in litigation costs for the second instance.

status quo

The two-sided nature of professional anti-counterfeiters

Han Fukun filed a lawsuit with the Licang District People's Court, and the court of first instance held that Han Fukun purchased the red wine involved in the case for profit and did not belong to consumers; The red wine involved in the case is an imported pre-packaged food, but it does not have a Chinese label, does not meet the provisions of the national mandatory standards, and is a food that does not meet the food safety standards, and should be returned for a refund; Because the red wine involved in the case did not have a Chinese label, it would not mislead Han Fukun and induce him to trade against his true intentions, and the tenfold compensation was not supported.

Han Fukun was dissatisfied with the first-instance judgment and appealed. The Qingdao Intermediate People's Court held that the goods purchased by Han Fukun were means of subsistence, and he was a consumer under the Consumer Law. The court cited 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: "If a consumer produces food that does not meet safety standards or sells food that he knows does not meet safety standards, in addition to claiming compensation for losses, claims to the producer or seller for compensation of ten times the price or other compensation standards prescribed by law, the people's court shall support it." "Support a refund of one and a loss of ten.

Duohao Supermarket submitted a retrial to the Shandong Provincial High Court, and the Provincial High Court held that the focus of the dispute was whether to support Han Fukun's claim for tenfold punitive damages. According to the burden of proof, Han Fukun claimed 10 times the punitive damages, and should provide evidence to prove that the red wine involved in the case was toxic and harmful, did not meet the due nutritional standards, and may cause harm to human health. However, the evidence submitted by Han Fukun can only prove that the red wine involved in the case did not have a Chinese label and was not consumed after purchase, and the lack of a Chinese label for the red wine involved in the case would not cause any misinformation to him about purchase or consumption. Therefore, the application of law by the court of second instance was indeed improper and should be corrected. The Provincial High Court revoked the second-instance judgment and upheld the first-instance judgment, and the second-instance case acceptance fee of 4,626 yuan was borne by Han Fukun.

The controversy over whether the professional anti-counterfeiter is a consumer and whether the food and drug field supports a ten-fold claim for knowing and buying counterfeits reflects the inconsistent adjudication standards for professional anti-counterfeiting in judicial practice, which also confirms the two-sided nature of professional anti-counterfeiting: it can not only purify the market but also make profits.

observe

The road to professional anti-counterfeiting is getting narrower and narrower

In 1993, the Consumer Rights Protection Law was promulgated, making it clear that "one refund and one compensation", and in 1995, Wang Hai, the first person in China to crack down on counterfeiting, purchased counterfeit Sony headphones and successfully claimed compensation. The 2009 Food Safety Law stipulates the "one false compensation ten" mechanism, and these punitive damages clauses have made it a profession to buy and fight counterfeits, and at the same time, the food safety reporting system introduced in various places has also given rise to a large number of professional whistleblowers. As an unstaffed social supervisor, the professional anti-counterfeiter has promoted the conscious legal and compliant operation of operators and purified the market economic environment. In the view of Wang Hai, a well-known anti-counterfeiter: "Punitive recovery legislation is to mobilize the enthusiasm of consumers and let consumers take the initiative to fight counterfeiting." Legislation is driven by interests, so that consumers become unpaid supervision volunteers, anti-counterfeiting is the purpose of legislation, and allowing consumers to earn money is the means of legislation. ”

The low threshold and high income of professional claims attract people of uneven quality to participate, and the bottom line makes the exposure of "professional anti-counterfeiting behavior" higher and higher, and even arouses the disgust of the public. A Chongqing peasant woman sold her home-made buckle meat online, and after someone deliberately placed an order for 150 copies, she sued for the "three nos" without labels, and the court sentenced the peasant woman to pay 50,000 yuan in compensation, which caused a lot of controversy. In Yiyuan County, Zibo City, someone specially looked for a store that did not have a cold dish business license to place an order for cold food takeaway, and once the store delivered the food to complete the order, they took this opportunity to complain and report to the market supervision department, so as to blackmail the store to "spend money to eliminate disasters", as little as three or four hundred yuan, and as much as a few thousand yuan, and finally the public security department arrested him on suspicion of extortion.

According to the reporter's investigation, the current professional anti-counterfeiting team is a "franchise system" to attract newcomers. The reporter searched for anti-counterfeiting video bloggers on the online platform, and after adding friends, the other party sent the reporter a gift package, which contained basic clues to fight counterfeiting, including cold dishes, diet pills, etc., as well as negotiation skills and specific words for compensation. The other party said that the apprentice's entrance fee was 698 yuan, and the four masters tutored the apprentices to fight fakes, and they could make money with strong execution. At present, there is a trend of commercialization of the act of knowingly buying counterfeits, and its motive is not to purify the market, but to use punitive damages to make profits.

According to Guangming.com, the number of professional claims in Shanghai in 2023 will be as high as 246,000, with nearly 8,000 people complaining more than 10 per year, and some people will file high claims against 1,372 restaurants within a year on the grounds of "shooting cucumbers without a license". Last year, there were 1,591 administrative reconsideration cases in the field of market supervision in our city, half of which were initiated by professional claimants, involving pre-packaged food, catering, telecommunications operation services, etc. In fact, the proliferation of professional claims has also crowded out a large number of administrative law enforcement and judicial resources. According to Guo Xu, director of the Law Enforcement Inspection Bureau of the State Administration for Market Regulation, the market supervision system will accept 17.403 million complaints in 2023, with an average of 1.8 complaints and more than 3,000 complaints.

specification

After the chaos, the supervision will be increased

In recent years, the relevant state departments have continuously issued opinions and issued measures to severely crack down on malicious reporting and illegal profit-making in accordance with the law, so as to create a stable, transparent and predictable environment for market entities. On July 1, 2024, the "Regulations for the Implementation of the Law of the People's Republic of China on the Protection of Consumer Rights and Interests" will come into force. For the first time, the "Regulations" stipulate that complaints and reports shall comply with laws, regulations and relevant provisions, and shall not seek improper benefits, infringe upon the legitimate rights and interests of business operators, and disrupt the order of the market economy; Those who fraudulently obtain compensation or extortion must bear administrative responsibility and even criminal responsibility.

In judicial practice, there is a problem of inconsistent adjudication standards for professional anti-counterfeiting, and it is being corrected. During the two sessions of the National People's Congress this year, the Supreme People's Court interpreted the issue of claims for the purchase of counterfeit goods, saying that in the field of food and medicine, the purchase of counterfeit goods and professional claims have always been a difficult problem in judicial practice, and in the past, there were two different tendencies in judicial practice for the handling of counterfeit purchases, one is to support the claim regardless of the amount, which often leads to excessive responsibility for the operator, and even interferes with the normal production and operation order, and the other is that punitive damages are not supported, so that the illegal producer and operator can evade due legal sanctions. It is not conducive to cracking down on and curbing illegal activities such as the production and operation of counterfeit and shoddy products. In order to balance these two tendencies, the SPC has clarified reasonable living consumption as the standard to support claims for knowingly buying counterfeit goods, which means that only within the scope of reasonable living consumption, the losses suffered by consumers due to the purchase of counterfeit and shoddy food and drugs can be supported and protected by the law.

The field of administrative enforcement is also actively responding to malicious claims. The reporter learned that in recent years, Chengyang District has accepted more than 1,200 professional anti-counterfeiting reports, implemented no punishment in accordance with the law, and supported no compensation and no reward. In November 2023, Lin submitted a report to the Chengyang District Market Supervision and Administration Bureau, saying that he bought a bottle of three-free wine in the supermarket and asked for a written reply. The merchant said that the goods sold in the store have regular purchase channels and product labels. The outer packaging of the liquor involved in the sale was slightly damaged, so the liquor was used for display, and the informant was informed that the packaging box was damaged, and the informant said that he did not mind, but just bought it for his own drinking, and then the person maliciously reported it and carried out extortion. The Administration for Market Regulation will not file the case. Lin applied for administrative reconsideration, and the reconsideration department believed that Lin's purpose was not to remedy the damaged legitimate rights and interests, but to force the business to comply by filing a report and administrative reconsideration. At the same time, Lin did not provide evidence to prove that it had an actual impact on his rights and interests, nor did he provide sufficient evidence to prove that he had suffered substantial damage as a result. The reconsideration department determined that Lin did not belong to the report made by ordinary consumers to protect their legitimate rights and interests, and did not have the qualifications to be the subject of the applicant.

concern

What is the way out for professional anti-counterfeiting?

Wang Hai believes that to understand the professional anti-counterfeiting, we must first distinguish between "anti-counterfeiting" and "fake counterfeiting". "Fake beatings include blind beatings, framing, bag dropping, extortion, etc., and this kind of behavior has no public interest." 'Fake fighting' has brought a stigmatizing effect to 'anti-counterfeiting'. If the benefits sought by the crackdown on counterfeiting are within the scope of the law, do not infringe on the legitimate rights and interests of the operator, and do not disrupt the market order, it will not be prohibited; Those who fraudulently obtain compensation and extortion must bear administrative responsibility and even criminal responsibility. This will weed out most of the 'fake hits'. Wang Hai said.

"The real professional anti-counterfeiting is aimed at the merchant deliberately concealing or fabricating substantive information to affect the consumer's purchase decision, which is a fraud and a fundamental breach of contract." Wang Hai told reporters that in the past two years, he has focused on the case of illegally adding food and drugs, and has now made more than 1,600 cases, and this kind of crackdown on counterfeiting has always been uncontroversial. The reporter inquired that the Supreme People's Court had issued a guiding opinion, which clearly pointed out that if a dispute arises due to the quality of food or drugs, and the buyer claims rights against the producer or seller, and the producer or seller makes a defense on the grounds that the buyer knows that the food or drug has quality problems but still buys it, the people's court will not support it. Professional anti-counterfeiters have laws to follow for "knowing and buying fakes" in the field of food and drug safety.

The mainland's current "Measures for Rewarding Reporting Food and Drug Violations" increases the reward limit for a single report to 500,000 yuan, further encouraging the public to report. It is understood that Wang Hai can fight hundreds of cases a year, and in the past three years, the cost of illegal addition of food and medicine alone has been nearly 50 million yuan. Their crackdown on counterfeiting has also attracted the attention of relevant departments, and policies have been introduced to rectify the illegal addition of food and drugs.

Wang Hai said that cracking down on illegal addition is a serious crackdown on counterfeiting, and cracking down on imported red wine without Chinese labels is also a serious crackdown on counterfeiting. "The National Food Safety Law clearly stipulates that imported food must be labeled in Chinese to display food information, why have some businesses not posted it over the years? If the illegal act is not reported and punished, how to distinguish whether it is smuggling or counterfeit wine? What about market access? From the consumer's point of view, how can businesses ensure food safety if they can't even do something as simple as labeling? Wang Hai said.

In addition to imported goods with Chinese labels, there is a similar situation with price tags for goods on the shelf. Two days ago, Mr. Liu bought a drink at a supermarket in Qingdao, the price on the shelves was 6.2 yuan, and the counter settlement was 6.9 yuan, and the supermarket gave the company its own price difference compensation system to compensate consumers with 10 yuan. According to the Law on the Protection of Consumer Rights and Interests, if a business operator commits fraud in providing goods, it shall compensate the consumer three times the price of the goods purchased, or 500 yuan if it is less than 500 yuan. Mr. Wang went through several setbacks and spent a lot of time and effort to obtain the compensation granted by the law.

What is the direction of professional anti-counterfeiting? "From easy to difficult, first crack down on fake imported products without Chinese labels, and then upgrade to fight against illegal addition of fake food, increase the cost of violations, and force quality upgrades." If the fake is gone, the fight against fake is gone. Wang Hai told reporters and gave an example: the camera captures the vehicle and then punishes it, and restricts the driver and standardizes the traffic order through punishment, which is the contribution.

Guanhai News/Qingdao Evening News/Pocket Qingdao Reporter Lei Lin