Why Suqian Intermediate People's Court changed its sentence to support "knowing fakes and buying fakes" to
declassify the details and behind-the-scenes story of a prosecution for ten times punitive damages
● The first-instance court ruled that the plaintiff was suspected to be a professional counterfeiter and “buy fakes with knowledge of fakes”, and ruled to terminate the online shopping contract, the defendant refunded the purchase price, and the plaintiff returned “tonics”, and failed to support its appeal for ten times punitive damages; the second-instance court ruled that , "Even if the fake is known to be bought, the food purchaser can still claim ten times the compensation", supporting its claim
● Although professional counterfeiters have the subjective purpose of obtaining punitive compensation for personal benefit, from the perspective of the social effects of their actions, they are conducive to curbing the behavior of unsafe food, sanctioning illegal producers and operators, and maintaining honest operation The interests of consumers are conducive to maintaining fair trade and competition order, thereby maintaining food safety
● The collegiate panel of the second instance unanimously believes that, from the perspective of maintaining food safety, individual rights protection activities, including "knowing and buying fakes" and professional anti-counterfeiting, should be clearly and positively evaluated, and should not be entangled in "whether it is for the needs of daily consumption." And buy, “Do you know whether to buy fakes?” “Whether professional anti-counterfeiting” and other topics
□ Our reporter Ding Guofeng
Recently, a piece of news that "Suqian Intermediate People's Court changed its sentence to ten times punitive damages and supports the behavior of'knowing fakes and buying fakes'" has aroused heated discussion.
In this case, the plaintiff Chen Gang sued the court for the so-called imported "men's supplements" purchased online as illegal products, etc., and demanded the defendant manufacturer to pay punitive damages ten times the sales amount.
The court of first instance ruled that the plaintiff was suspected of being a professional counterfeit and "buying fakes knowingly", and ruled to terminate the online shopping contract, the defendant refunded the purchase price, and the plaintiff returned "tonics."
Chen Gang refused to accept the appeal and appealed to the Intermediate People's Court of Suqian City, Jiangsu Province.
The second-instance court changed its judgment and held that “even if the fake is known to be bought, the food purchaser can still claim ten times the compensation” and supports its claim.
Why does the court of first instance not support ten times punitive damages?
Why did the court of second instance change the sentence?
What is the "men's tonic" that the plaintiff bought online?
A reporter from the Rule of Law Daily conducted in-depth interviews with the first and second instance courts, revealing the unknown details of the case and behind-the-scenes stories.
Purchase the products involved in the case for profit
Ten times compensation is not supported in the first instance
Things have to start in March 2020.
The plaintiff, Chen Gang, purchased a batch of "men's tonic products" from the "Yongyuantai Flagship Store" opened by Anhui Yuguan Biotechnology Co., Ltd. on the online platform, including "First Class Cabinda Bark Authentic African Kuba Angola Genuine Men's Tonic Tea 250g" (Hereinafter referred to as Cabinda Bark) 8 pieces, and 8 pieces of "[Diamond Black Maca] 6A Authentic Peruvian Dark Maca Dry Fruit Maca Sliced Wine Tea 500g" (hereinafter referred to as Maca), with a total payment of 8,632 yuan.
After receiving the goods, the plaintiff discovered that there was manufacturer information on the Cabinda bark packaging box, and there was no product information on the Maca, and asked the customer service staff of the flagship store to get a reply "The label may have been forgotten".
In the process of communicating how to eat, the customer service staff said that there is no other way to eat except for making tea and wine.
Subsequently, the plaintiff added the store manager's WeChat according to the customer service staff's instructions. The store manager introduced in WeChat that maca can be soaked in water, wine, soup, and powder, etc., and cabinda bark can be soaked in water, boiled in water, and in wine. , And introduced the dosage, cooking method and time each time.
The plaintiff suspected that the products involved in the case were Sanwu products, and sued the People's Court of Shuyang County, Jiangsu Province, requesting the cancellation of the sales contract with the defendant Yuguan Company, the refund of 8,632 yuan and the payment of 86320 yuan as compensation calculated at ten times the price of the goods.
After accepting the case, the Shuyang County Court held two public hearings.
During the trial, the plaintiff claimed that the products involved in the case had many illegal acts and hidden food safety hazards, and through inquiries about relevant laws and regulations and consultations, it was learned that Maca (dried fruit) and cabinda bark cannot be eaten as food in China. There is no health product approval number.
In addition, after inquiring about the "List of Articles That Are Both Food and Drug", "Summary of List of Relevant New Food Ingredients and Common Foods" and "The Pharmacopoeia of the People's Republic of China 2015 Edition", there were no results.
The plaintiff believes that the product involved in the case is neither a new food raw material nor a product of the same kind of medicine and food, nor does it have traditional eating habits in China and cannot be eaten as a food raw material.
The plaintiff also provided evidence to prove that there was no inspection and quarantine certificate on the product packaging involved, and the defendant failed to provide evidence to prove that it passed the inspection and quarantine and was an illegal product that had not undergone customs declaration and entry inspection and quarantine.
Moreover, in the "Information on Food and Cosmetics Not Allowed to Enter in October 2019" issued by the General Administration of Customs, it is clearly stated that Maca is a food that is not allowed to enter China.
The defendant Yuguan Company argued that the products involved in the case were black maca fruit (Maca) and cabinda bark grown in agriculture, dried black maca (Maca) and cabinda bark made by drying and packaging. The process did not change the basic natural and chemical properties of the bark of Maca and Cabinda. They belong to "edible agricultural primary products" and should not be subject to the provisions of the Food Safety Law and related judicial interpretations.
Moreover, the defendant had fulfilled the obligation of inspection of the purchase of goods, not knowing that the product violated the food safety standards, and should not be liable for ten times the compensation.
The court of first instance held that Yuguan Company should abide by the provisions of the Food Safety Law when selling the products involved in the case as edible agricultural products on the market.
In May 2011, the former Ministry of Health issued the "Announcement on Approving Maca Powder as a New Resource Food", which stated that maca powder was approved as a new resource food in accordance with the provisions of the Food Safety Law and the New Resource Food Management Measures.
In December 2016, the Department of Food Safety Standards and Testing and Evaluation issued the "Summary of Lists of Relevant New Food Ingredients and Common Foods", which listed maca powder, but did not list maca and cabinda bark.
During the trial, the court of first instance found that the plaintiff had four similar cases being heard or closed in the People’s Court of Gulou District, Nanjing City, Jiangsu Province, and the People’s Court of Xuanwu District.
Therefore, the court of first instance supported most of the plaintiff’s claims in its judgment, but held that the plaintiff bought the same or similar goods from different sellers several times in a short period of time and sued for the same reason for the refund of the purchase price and ten times the punitive damages. The behavior was obviously not for the needs of daily consumption, but for the purpose of making profits. Based on this, it was determined that the plaintiff had purchased the products involved in the case for the purpose of making profits.
Affirm the role of professional counterfeiting
Punitive damages
After Chen Gang appealed, the Suqian Intermediate People's Court opened a trial and confirmed the facts ascertained by the court of first instance. The sentence was changed to support Chen Gang's claim that Yuguan Company should pay him 86320 yuan in compensation of ten times the amount of the purchase price. At the same time, since the food involved did not meet the food safety standards, To prevent re-entry into the market, the judgment requires direct collection and destruction.
It is understood that the product involved in the case, Cabinda bark, as of the second-instance judgment, Yuguan Company has not yet provided an inspection and quarantine certificate, and the court is still unable to prove that the "black maca dried fruit slices" have a legal source of purchase through Yuguan Company. Proving that the food is safe does not prove that it has fulfilled the obligation of inspection of the purchase as a food operator.
In its judgment, the court of second instance held that, as an operator with certain professional knowledge, Yuguan Company was obviously more discerning than ordinary people, and its claim that it did not know that the products sold did not meet the food safety standards could not be established.
In response to Yuguan’s defense that “Chen Gang purchased the food involved in the case for the purpose of claiming compensation, and was not a consumer, and has no right to claim punitive damages”, the court of second instance held that the purpose of punitive damages under the Food Safety Law is to increase The operator’s liability for compensation, enhance the enthusiasm for rights protection, purify the food market, maintain food safety, and protect the lives and health of the people.
Excluding those who buy fake fakes or professional counterfeiters from the main body of rights protection only based on "whether it is for the needs of daily consumption" is not in line with the original intent of the legislation, and this viewpoint should not be adopted.
The court of second instance held that the expression of "consumers" in the Food Safety Law is mainly relative to producers and operators. As long as the purchase of food is not for production or business purposes, it should be defined as a consumer.
As for the purchase of goods for personal use, as a gift to others, or for compensation, it does not affect the determination of the nature of consumption.
The court of second instance also held that it is only from the perspective of whether they have certain professional rights protection knowledge, whether there are multiple purchases, whether the purchase exceeds a "reasonable" amount, and whether they are consumers. There is no definite or quantifiable standard to define whether it is a consumer. Consumer identity and consumption behavior have a certain degree of subjectivity and randomness, which are far-fetched and imprecise.
"From the perspective of value measurement, safeguarding food safety means safeguarding the public interest of the society. It is of priority and should be affirmed and supported. Although professional counterfeiters have the subjective purpose of obtaining punitive compensation for personal benefit, they are based on their behavior in the society. In terms of effect, it will help curb the production and sale of unsafe food, sanction illegal producers and operators, and safeguard the interests of honest operators. It will help maintain fair trade and competition order, and thus safeguard food safety." The presiding judge of the case, Suqian Zhou Hui, deputy dean of the Intermediate People's Court, analyzed.
"The legislature has established a punitive compensation mechanism in the Food Safety Law to severely sanction the producers and operators of counterfeit and inferior food, maintain food safety, and enhance the people's confidence in food safety. In this context, individual rights protection and relevant departments' law enforcement The combination is more conducive to building a dual-drive mechanism for maintaining food safety and eliminating blind spots in food market governance.” According to Zhu Geng, the undertaker of the case, the collegiate panel agreed that the protection of personal rights should be conducted from the perspective of maintaining food safety, including "Knowing fakes to buy fakes" and professional anti-counterfeiting should be positively evaluated, and should not be entangled in topics such as "whether to buy for the sake of living consumption", "whether knowing to buy fakes", and "whether professional to fight fakes".
Bragging about its magical effects online
Uncover the mystery of tonics
So, what exactly is the "men's tonic" involved in the case?
The reporter searched the Internet for "Carbinda Bark", and there are detailed introductions on various "encyclopedias" and web pages, including: "Carbinda Bark is an alpha-adrenergic receptor blocker" and "According to research, carbene Bark has a wide range of pharmacological effects, among which the most obvious pharmacological action is for the treatment of male sexual dysfunction. "Carbinder bark has achieved decisive recognition worldwide."
The Internet is also flooded with related pictures, web pages, and soft texts.
There are even many online doctors who boast about its magical effects when answering consultations.
The reporter randomly clicked on a webpage called "Ziyi Mall" and saw that the 250g package of Cabinda bark sold online at a price of 168 yuan, and the usage is boiling water, tea, wine, and stew, and it is still on the web page. Remind that the product is a "primary agricultural product", strictly enforce the Agricultural Product Quality and Safety Law, also known as "the agricultural product does not change the properties, does not add anything, improper health care products and ordinary food sales, so the agricultural product does not have a production license number and implementation standard number ".
In the online comments, many netizens said that the effect was very good, and many netizens pointed out that there was false propaganda, which had no so-called effect at all.
"Online information says that alpha-adrenergic receptor blockers have aphrodisiac effects, but how many active ingredients are contained in the bark? Can they be absorbed normally by the body after soaking in water? It is not yet fully understood." A medical staff told reporters, "Treatment of male sexual dysfunction" in online advertisements, but drug advertisements involved must be approved by the provincial advertising review agency; conversely, it is speculated that if there is such a magical effect, then why domestic experts and pharmaceutical manufacturers have not conducted research and launched regular products so far What about going public?
Li Xinhua, an associate professor at Nanjing Agricultural University, told reporters that the cabinda tree is mostly produced in tropical areas on the west coast of Africa.
Although there have been individual research reports on the chemical components of cabinda bark in China, the relevant research work did not explain the source of the bark and the identification criteria of its species characteristics, nor did it explain the physiologically active functions of the chemical components of cabinda bark.
In addition, there is no authoritative information on the morphological characteristics, texture, structural composition and pharmacognosy identification standards of Cabinda bark in China. Therefore, it is temporarily difficult to determine the authenticity of all kinds of so-called "Carbinda bark" on the market.
Comics/Li Xiaojun