Professional anti-counterfeiting claims millions, why the result of the court trial reversed and reversed?

　　"Professional anti-counterfeiting people" who suspected fakes to buy fakes, know fakes to buy fakes, claim 10 times compensation, should they get legal support?

What are the difficulties in judging the application of the punitive damages system in judicial practice?

A recent retrial judgment by the Beijing Higher People's Court has caused concern.

"Refund one compensation ten", not supported → supported → not supported

　　The course of the matter should start in 2015. On June 1st and 5th, 2015, Liu bought 86 boxes of sea cucumbers with the words Tianxiong sea cucumber on the packaging box at a large-scale clothing and apparel shopping festival in Beijing. , Paid a total price of 107,500 yuan.

The 6 boxes purchased on June 5 were witnessed by a notary.

Later, Liu brought the seller, manufacturer, and exhibition sales company to the court, requesting that the defendant be ordered to return the purchase price, notarization fee, and increase in accordance with the provisions of the Food Safety Law on the grounds that the purchased sea cucumber did not meet the relevant laws and regulations. Compensate 10 times the purchase price.

　　The first-instance judgment supported Liu's return of the goods, and at the same time held that Liu was a professional anti-counterfeiting claimant, who purchased the goods for non-life purposes, did not belong to consumers, and did not support ten times compensation.

　　The court of second instance found that the label on the sea cucumber package involved had a shelf life of 24 months without specifying the date of production, and the product standard number indicated on the label was incorrectly marked as the number of frozen scallops, which was a major food safety issue, confirming Liu's consumer Identity, support "refund one compensation ten".

　　Application by Li and the manufacturer.

On December 30 last year, the Beijing Higher People's Court decided to arraign the case. On September 15 this year, a retrial judgment was made and it was

　　In this case, the first-instance judgment will return the payment for the goods, and it does not support ten times the compensation. When the second instance is revised, it supports ten times the compensation, and then when the retrial is revised, it does not support ten times the compensation.

It can be seen that there is difficulty in judging the application of the punitive damages system.

So what is the basis for the judgment of the Beijing High Court?

According to the analysis by Zhu Wei, a member of the Expert Committee of the China Consumers Association and an associate professor at China University of Political Science and Law, the main reason is to determine: "During the retrial, a lot of determinations were made on the packaging issues mentioned in the second and first trials to determine the actual purchase. Bulk sea cucumbers. Since it is bulk sea cucumbers, it may be a bit untenable to say that its packaging may affect food safety. In particular, the professional counterfeiters did not submit related quality problems of the involved sea cucumbers in court. Or submit the damage that may be caused to the human body. Therefore, the final judgment of the retrial court believes that this situation may not be applicable to 10 times the compensation of the Food Safety Law."

Should "knowing fake and buying fake claims" be supported?

Different court judgments

　　In addition to the more than one million claim amount, the cause of concern in this case is the identity of the plaintiff Liu in the original trial.

The first-instance court searched related cases. From 2014 to 2017, Liu filed dozens of lawsuits for compensation after purchasing goods in Beijing's various district and county courts.

In other words, Liu is what everyone calls a "professional counterfeit".

And whether professional counterfeiters belong to consumers?

Should the claim of knowing fake purchases be supported?

This has always been the focus of controversy in related seminars and media programs.

　　Viewpoint 1: In a sense, professional counterfeiters play a role of social supervision and help promote business self-discipline.

　　Viewpoint 2: Because of the purpose of life consumption, he is the consumer.

As for the professional counterfeiters, it is obvious that he is not for the sake of living consumption at all. He deliberately buys fakes. What they seek is his own personal gain. Has the compensation they received be shared with everyone?

Are there any public interest litigation?

No.

　　Viewpoint 3: If there is no professional faker telling me that these are fakes, I will eat these fakes in my stomach.

In actual judicial trials, it is not an isolated case that the results of the first instance and the second instance are inconsistent.

For example, in 2019, this was the case in the second instance of the Qingdao Intermediate Court of Shandong Province.

To put it simply, Mr. Han spent more than 20,000 yuan to buy 12 bottles of imported red wine. The red wine did not have Chinese labels and Chinese descriptions. Therefore, he sued the merchant to the court and demanded a refund of 10 times.

　　The first-instance judgment of the case determined that Mr. Han purchased the wine involved in the case for profit, not for consumers, and did not support the tenfold compensation claim.

Previously, Han was rejected by four courts for the same act of anti-counterfeiting claims.

　　The second-instance judgment of Qingdao Intermediate People's Court emphasized that judging whether a natural person is a consumer is not based on his subjective state, but on the nature of the goods he buys. As long as the goods he buys are means of living, he is the right of consumers. Consumers under the protection law.

The Qingdao Intermediate People's Court also supported Han's request for ten times compensation.

Experts: Summarize different judgment thinking as soon as possible, refine judicial interpretations, and unify judgment standards

　　Professional counterfeiters use the same method of proof. Why are the results of prosecuting similar cases in different courts different?

Professor Liu Junhai, vice president of the Chinese Society of Consumer Law and director of the Institute of Commercial Law of Renmin University of China, analyzed that this is because of inconsistent understanding of some focal issues and different judgment thinking.

"How to understand the punitive damages system stipulated in Article 55 of the Consumer Protection Law and Article 148 of the Food Safety Law? How to treat the dialectical relationship between the protection of consumer rights and the optimization of the business environment? Do consumers receive compensation for damages? Unjust enrichment? Does the behavior of consumers suspecting and buying fake fakes affect the law enforcement authority of market supervision departments? In practice, these issues are more controversial." Liu Junhai said.

　　Which kind of understanding is accurate?

Liu Junhai believes that a basic starting point is that operators’ fraud and violation of food safety standards are objective concepts, not subjective concepts, “that is, whether there is any deliberate intention of defrauding consumers and violating food safety standards with the defendant’s business. , There is no necessary logical connection."

　　At the same time, Liu Junhai believes that the court's judgment should be based on the existing legal system.

First of all, the provisions of the Consumer Protection Law and the Food Safety Law on the punitive damages system. He said: "When consumers buy ordinary goods and receive ordinary services, they encounter fraud, and operators can bear 1+ 3 times the punitive damages liability, the starting price is 500 yuan. If the food sold by the producer or seller does not meet the food safety standards, including the food label, which may cause consumers to misunderstand, the price is 1+10 times Punitive damages start at 1,000 yuan."

　　Secondly, Liu Junhai also mentioned Article 3 of the Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Laws in the Trial of Food and Drug Disputes: “Due to food and drug quality disputes, buyers claim rights to producers and sellers, and producers , The people’s court shall not support the seller’s defense on the grounds that the buyer knows that the food or medicine has quality problems and still buys it.”

　　Liu Junhai further analyzed: “Because consumers’ right to claim punitive damages is backed by a legal basis, it is not unjust enrichment. Unjust enrichment means that there is no legal basis for self-benefits and others’ damages. However, punitive damages have a legal basis. Support and basis."

　　Some people believe that anti-counterfeiting should rely on market supervision departments, procuratorial public interest litigation, or it is more reliable for companies to fight counterfeit by themselves.

Liu Junhai believes that this is not inconsistent with consumer anti-counterfeiting: "The suspected fake buyer did not exercise the administrative guidance, administrative supervision, administrative investigation and administrative punishment authority exclusive to the market supervision department. Therefore, the law enforcement behavior of the professional law enforcement department and the suspected fraud of consumers The behavior of buying fake claims is not inconsistent. Consumer claims are protected by the Civil and Commercial Law, while the law enforcement of the market supervision department is protected by the administrative law." He said.

　　However, Liu Junhai emphasized that different judgments are more indicative of the inconsistency of judgment thinking. Therefore, it is recommended that the Supreme Court should summarize the different judgments of different judgments in the same case as soon as possible, refine the judicial interpretation, and introduce a group of benchmarking and leading Sexual demonstration case.

Liu Junhai said: “Further unify the judgment standards and further eliminate this diametrically opposite phenomenon in consumer punitive compensation claims. Only in this way can a clear and stable judgment signal be sent to consumers and operators. Giving full play to the social functions of the law to solidify the foundation, benefit the long-term, and stabilize expectations, can the punitive compensation system better punish the dishonest, compensate the victims, reward the defenders, educate the business community, warn the entire society, and provide a better The social public psychology plays a role of comfort."

　　(Sun Ying, reporter from Central Broadcasting Corporation)

　　(Edit Tang Zeyi)