Henan Consumers Association v. Simba Bird's Nest case is about to start: claim 80 million

　　Henan Consumers Association v. Simba Bird's Nest case is about to start: claim 80 million, three major disputes attract attention

　　Henan Consumers Association v. "Simba Bird's Nest" case is about to start.

　　On May 7, The Paper learned that the consumer public interest civil lawsuit initiated by the Consumers Association of Henan Province over the "Simba Bird's Nest Incident" will be heard in the Zhengzhou Intermediate Court on the 9th.

Due to the impact of the epidemic, the case is scheduled to be heard publicly at 9:00 a.m. that day.

　　Peng Mei News noticed that since the Zhengzhou Intermediate People's Court formally accepted the lawsuit brought by the Henan Consumers Association on December 15 last year, whether the permanent ban on Simba's account and other claims have exceeded the scope of the lawsuit, whether the case meets the conditions for starting a civil public interest lawsuit, and whether the lawsuit Whether it will affect the existing reimbursement process and other issues has become the three major controversial topics, which will also be the focus of the trial.

Focus 1: Is the permanent account ban beyond the scope of litigation

　　On April 24, the Henan Consumers Association v. "Simba Bird's Nest Incident" issued by the Zhengzhou Intermediate People's Court showed that Xin Youzhi (Simba) and its holding company Guangzhou Heyi E-Commerce Co., Ltd. and the actual sales of "sugar water bird's nest" Guangzhou Rongyu Trading Co., Ltd., Dazhou Xinyan (Xiamen) Biotechnology Co., Ltd., Beijing Kuaishou Technology Co., Ltd., and Zhejiang Tmall Network Co., Ltd. are the six defendants in this case.

　　In addition to the request for an order of "one refund and three compensation" as high as 79,714,156 yuan, the biggest dispute in this case is that Henan Consumers Association requested the court to order Beijing Kuaishou Technology Co., Ltd. to permanently suspend Xin Youzhi and Guangzhou Heyi E-Commerce Co., Ltd. Live account opened.

　　However, although the "Simba Bird's Nest Incident" is labeled as Simba, it is not Xin Youzhi who brought the goods.

According to the investigation conclusions previously announced by the Guangzhou market supervision department, as the founder of the live broadcast room involved, Guangzhou Heyi E-Commerce Co., Ltd. arranged the anchor "Time is Beautiful" in the live broadcast room on September 17 and October 25, 2020. Promote the product "Mingzhi Bowl Flavor Instant Bird's Nest".

　　Is it reasonable to permanently ban all livestream accounts opened by Simba and his companies?

Some netizens and legal professionals raised questions.

The Henan Consumers Association has not publicly responded to the matter, but in the indictment, the Henan Consumers Association stated: "Xin Youzhi, as the head anchor of the Kuaishou platform, has a large number of fans and huge influence, and is also the owner of Guangzhou Heyi E-Commerce Co., Ltd. The actual controller, in fact, also participated in the live-broadcast sales of this case, and should bear the corresponding joint and several liability for compensation."

　　As a kind of online virtual property, a live broadcast account has a certain punitive nature. The Henan Consumers Association's request to the court to order the permanent ban of the account is beyond the scope of this public interest civil lawsuit, and it remains to be determined by the court.

Focus 2: Does this case meet the conditions for starting a public interest lawsuit?

　　In January this year, the Henan Consumers Association held a press briefing on the litigation situation, saying that the case was the first civil public interest litigation case organized by the Consumers Association in Henan Province.

So far, whether the case meets the conditions for starting a public interest litigation has become the second focus of the dispute.

　　According to the "Consumer Rights Protection Law", the China Consumers Association and consumer associations established in provinces, autonomous regions and municipalities directly under the Central Government may file lawsuits in the people's court for acts that infringe upon the legitimate rights and interests of many consumers.

　　Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Consumer Civil Public Interest Litigation Cases, which will come into effect on January 1, 2021, also clearly stipulates the scope of application of consumer civil public interest litigation: for operators who infringe upon many unspecified consumers This Interpretation shall apply when a consumer civil public interest lawsuit is filed where the legitimate rights and interests of the consumer are endangered, or there is a danger to the personal or property safety of consumers, etc.

　　The dispute in this case mainly focused on the existence of "unspecified consumers".

The Henan Consumers Association stated in the indictment that this incident violated the legitimate rights and interests of many unspecified consumers and caused serious damage to the social and public interests.

　　Wang Weiwei, a lawyer from Beijing Zhongwen Law Firm, once wrote that the consumers who have suffered losses have actually been identified by retrieving transaction records, and the amount involved is clear. The number of infringed consumers and losses are unclear, so whether the case applies to public interest litigation, the formal elements of which are debatable.

　　However, the Zhengzhou Intermediate People's Court has confirmed the nature of the case as a consumer civil public interest litigation.

Therefore, "unspecific consumers" may become the direction of court debate.

　　Peng Mei News noticed that the scope of compensation for the Henan Consumers Association's lawsuit is limited to the "Simba Bird's Nest Incident", that is, the sales time is limited, and the main body of live broadcast delivery is limited to Xin Xuanfang.

The behavior of many celebrities and anchors who have recommended this "Tangshui Bird's Nest" live broadcast, and the historical sales orders of the "Tangshui Bird's Nest" Tmall flagship store, are not within the scope of this lawsuit.

Focus 3: Will litigation complicate the reimbursement process?

　　In addition to the dispute over whether the permanent ban is beyond the scope of the lawsuit, whether the lawsuit will affect the ongoing compensation process is also worthy of attention.

　　After the "Simba Bird's Nest Incident" occurred in October 2020, Xinxuan Group launched the advance compensation plan of "one refund and three compensation" on November 27 of that year.

　　On December 23, 2020, when the Guangzhou Municipal Administration for Market Regulation notified the investigation and handling of the "Simba Bird's Nest" incident, it has clarified the responsibilities of all parties involved in this incident, and determined that the seller of the goods involved is Guangzhou Rongyu Trading Co., Ltd. .

　　On June 30, 2021, the Guangzhou Arbitration Commission ruled: Of the refunds paid by Xinxuan before December 16, 2020, 30,355,459 yuan should be borne by the brand owner Guangzhou Rongyu Trading Co., Ltd.

　　Peng Mei News noticed that although the main responsible person and the brand owner Guangzhou Rongyu Trading Co., Ltd. had already been revoked in January 2021, Xin Xuan still took bottom-line compensation measures.

　　On January 14 this year, after the Henan Consumers Association held a press briefing on the public interest litigation of the "Simba Bird's Nest Incident", Xinxuan Group responded that by January 14, 2022, Xinxuan Company has paid compensation to consumers related to this incident. The total RMB is 41,439,216 yuan. "Consumers that the company can contact and meet the conditions for refunds have all received compensation." The fundamental reason why some consumers still cannot get refunds is that all consumers in this incident were The order transaction relationship established directly with the merchant's Tmall store, whether it is Simba or Kuaishou, does not have the relevant contact information of consumers.

　　So far, under the circumstance of clear responsibility determination and orderly reimbursement, the Henan Consumers Association has filed a claim of nearly 80 million for reimbursement. Whether it will affect the ongoing compensation process is worthy of attention.

　　Li Yongjian, a researcher at the Institute of Financial and Economic Strategy of the Chinese Academy of Social Sciences, said that for operators who have taken the initiative to pay compensation, repeated accountability and the entertainment discussion they have caused tend to ignore the real content of consumer rights protection. The Simba Bird's Nest incident brought a public interest lawsuit, and there was less discussion on the division of rights and responsibilities and the process of compensation for the incident."

　　Lin Ping, senior reporter of The Paper