Can "professional counterfeiting" be supported? That's what the court ruled!

Consumers' rights and interests shall be protected by law when purchasing or using commodities or receiving services. However, should we support buying goods knowing that there are quality problems-professional counterfeiting? Please look at the case. The counterfeiter's application was not supported by the grassroots court in the first instance, and the court of second instance made a different judgment.

I. Basic information

1.On July 0, 2020 10, Li bought 6 boxes of "Hong Kong time-honored Jindingsheng Shengli Coffee" from an online shop on an e-commerce platform at a cost of 1922 yuan. On July 23rd, 2020, I bought six boxes of the same coffee in this online shop and spent 1952 yuan.

2. On August 29th, 2020, the content of tadalafil (the main component of Viagra) in coffee samples was 766μg/g after testing by a third party.

Second, the view of the court of first instance.

The civil judgment No.6058 (2020) Lu 02 13, made by the People's Court of Licang District, Qingdao, the court of first instance, holds that:

1. The applicant specified in the test report is a company, and it is unreasonable for the plaintiff to send it to a foreign institution for testing in the name of others, and no relevant evidence has been submitted to prove that the testing institution has the corresponding food qualification; The specifications of the coffee purchased by the plaintiff were 13g per bag, but the number of samples sent for inspection was 200g, which could not prove that the samples sent for inspection were the coffee purchased by the plaintiff, so the test report was insufficient. Therefore, the plaintiff's claim that the coffee involved is a product with drugs added that does not conform to the Food Safety Law has no factual basis.

2. The plaintiff said that she felt slight discomfort after eating 1 package, but did not provide evidence to prove that she suffered actual losses due to the product involved.

According to the regulations, operators must have the subjective intention to sell food that does not meet the safety standards, and consumers have the right to ask operators to bear punitive damages. The defendant in this case is the operator of the products involved, and the plaintiff did not provide evidence to prove that the defendant had the subjective intention of the above situation.

4. According to Article 2 of the Law of People's Republic of China (PRC) on the Protection of Consumers' Rights and Interests: "The rights and interests of consumers who purchase or use commodities or receive services for their daily needs are protected by this law. "In this case, the price of coffee involved is much higher than that of ordinary coffee. The plaintiff bought six cases of this coffee on July 10, 2020. Upon receipt on July 4th, 2020, it was found that the production date of this product was 20 18 1 1.2, and the shelf life was two years. The plaintiff is nearing the expiration date.

5. The plaintiff filed eight cases in the People's Court of Dalian High-tech Industrial Park for demanding high compensation for food safety for half a year, and now he has filed a case in the People's Court of Licang District of Qingdao for demanding high compensation for food safety for less than half a year 12. As far as the purpose of the plaintiff's transaction is concerned, it is no longer in line with the legal definition of consumers.

Therefore, the plaintiff's claim for the defendant to return the goods and pay ten times the compensation has no factual and legal basis, and the court of first instance does not support it.

Third, the judgment of the court of second instance.

The plaintiff appealed to Qingdao Intermediate People's Court, and the plot changed for the better. (202 1) Lu 02 Minzhong No.6025 judgment holds that:

1. After investigation, it was found that the testing organization had the qualification certificate and obtained the qualification to determine whether tadalafil was contained in food. The main testers, auditors and approvers involved in the testing in this case all had corresponding qualifications. The appellant said that most inspection and testing institutions do not accept the inspection entrustment of individuals, but only the entrustment of units, and the statement that they can only entrust others is acceptable. Therefore, the inspection result table has the proof function.

2. The food in this case contains prescription drugs, and there is no inspection and quarantine certificate for imported goods, and there is no Chinese label. The appellee did not ask for the food business license and inspection and quarantine certificate from his family, which was enough to be considered as food that did not meet the food safety standards, and the appellee knew this, and the appellee should pay punitive damages. The appellee claimed that it was impossible to prove that the products in this case were purchased from the appellee, nor could it be confirmed that they were the original products received. It cannot be ruled out that the product was replaced or originally labeled with relevant products, but the appellee concealed or destroyed it. Because it did not submit enough evidence to refute it, it was not improper to reject the letter in the first instance, and our court confirmed it.

3. According to Article 10 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Civil Disputes over Food Safety, "If the food does not meet the food safety standards and the consumers claim that the producers and operators should bear punitive damages according to the provisions of the second paragraph of Article 148 of the Food Safety Law, the people's court will not support it", and the appellee claims that the appellant has not provided evidence to prove that the products in this case have indeed suffered damage, and the court will not support it.

4. The Appellee claimed that the Appellant did not buy the products in this case for daily consumption, and the original intention of buying the goods was not for personal consumption, and its profit motive was obvious. As far as the transaction purpose is concerned, it does not belong to the consumers referred to in Article 148 of People's Republic of China (PRC) Food Safety Law, but is a professional counterfeiter. In our hospital's opinion, if the so-called "professional counterfeiters" make fakes before and are no longer regarded as consumers when they re-consume, then the consumers of "professional counterfeiters" will be deprived of their civil rights, their rights in the field of consumption will not receive legal relief, and their consumer status will be sentenced to death by law, which violates the legal provisions of equality of civil rights and capacity of all people and seriously violates the basic principles of law. The appellee claims that the appellant didn't buy the food in this case out of the needs of daily life, and there is no factual and legal basis, so this court will not support it. 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 stipulates that "if there is a dispute over the quality of food and drug, the buyer claims the rights from the producer and seller, and the producer and seller make a defense on the grounds that the buyer still buys the food and drug knowing that there are quality problems, the people's court will not support it". The appellee argued that it was obviously in line with this situation that the appellant knew about the fake and bought the fake, and this court did not support it.

5. According to the relevant laws and regulations, the Hong Kong food producer in this case should produce food in accordance with the laws and national food safety standards, and affix simplified Chinese labels, otherwise the customs will not release it, and the inspection and quarantine department will not issue inspection and quarantine certificates. The food in this case has no Chinese label and inspection and quarantine certificate, which shows that the food is imported through informal channels, the source is unknown, the food safety is worrying, and it contains prescription drugs, which is toxic and harmful. The appellant's failure to fulfill the obligation of incoming goods inspection constitutes "knowing" in Article 148 of the Food Safety Law, which does not belong to the situation stipulated in the proviso of this Article.

It is true that food safety means that food is non-toxic and harmless, meets the prescribed nutritional requirements, and will not cause any acute, subacute or chronic harm to human health. However, it is still difficult to ask consumers to prove that food is toxic and harmful when consumers have proved that food does not meet food safety standards. Consumers may not eat food that does not meet food safety standards. Operators will say, how can you prove that food is toxic and harmful if you don't eat it? The consumer bought it and ate it, and it was no problem. Operators will say, if you don't eat something wrong, how can you prove that food is toxic and harmful? Consumers also have problems after buying and eating, and operators will say, how to prove that there is a causal relationship between the problem and food? Yes, it's hard to prove. In environmental pollution cases, it is difficult for the victim to prove that there is a causal relationship between the damage to his body and the sewage discharge behavior of the sewage discharge enterprise. Some situations need decades or even generations to discover and prove. Similarly, in food safety disputes, it is difficult for consumers to prove that there is a causal relationship between damage to their bodies and food. Consumers can only use the test results to prove that there is something wrong with the food. If so, the operator will say that the inspection and testing are after the event. How can you prove that there is something wrong with the food delivered? Even if there is a problem, you may not be able to eat bad people. Try it if you don't believe me! In other words, the samples you sent for inspection were not purchased from us. Therefore, only when accompanied by a notary, the consumer immediately entrusts the inspection of the purchased food, knowing that it is toxic and harmful, can it prove that the food is unsafe because it is harmful to the body. So it is almost impossible for consumers to prove that food is toxic and harmful.

Through trial practice, our hospital has gradually understood why the Food Safety Law puts the foothold of food safety on food safety standards: producers who produce foods that do not meet food safety standards or business operators who knowingly sell foods that do not meet food safety standards should pay punitive damages, and also understand why the relevant judicial interpretation stipulates that "consumers demand business operators to bear punitive damages without taking personal injury as the premise". It's like the relationship between a city and a moat. One person throws stones into the moat, the city can't be lost, and neither can two people. However, if people throw stones into the moat generally, repeatedly and for years, the moat will be filled up sooner or later, and then the city will not be far from falling. Food safety is a city, and food safety standard is a moat. When food safety standards are ignored and violated universally and repeatedly, there will be no food safety. To control food safety, we must use "the strictest standards, the strictest supervision, the severest punishment and the most serious accountability".

The appellant's lawsuit increased the case volume and workload of the court, but the people who increased the workload were those who produced food that did not meet food safety standards and those who still sold food that did not meet food safety standards, not consumers. Just as the people send criminals to the police station, it is criminals, not kidnappers, who add workload to the police station. The police station must not shut the kidnappers out because of the heavy workload, or let the criminals get away with it in order to prevent them from being kidnapped.

In real life, a large number of illegal acts have not been investigated. The more illegal acts are not investigated, the lower the status of law in people's minds, the less people have legal beliefs, and the more illegal acts will become. If consumers can be punished in time like electronic cameras at traffic lights, there will be fewer and fewer foods that violate food safety standards until they disappear. The so-called "professional counterfeiters" can play the role of electronic capture and let operators know the truth that "they will be caught if they don't reach out". Professional counterfeiters have played the role of security inspectors and illegal records for the society and the market free of charge, which should be recognized. Only those who produce food that does not meet food safety standards and those who deliberately sell food that does not meet food safety standards hate "professional counterfeiters." Consumers who don't know what to do will not crack down on counterfeiting. If consumers who know what to do are not allowed to crack down on counterfeiting, is the Consumer Protection Law still a consumer protection law? That is a "fake" selling "fake" protection law!

The whole society should create a social governance pattern of * * * construction, * * * governance and * * * enjoyment in the field of food safety in the new era. People's courts should support consumers in cracking down on counterfeit goods, and let the whole society know through individual cases that consumer law and food safety law have teeth, and food safety standards are red lines, so you can't touch them, or you will pay a price. Only when the people's courts make strict judgments according to law will the number of such cases flooding into the courts be reduced, and a large number of cases will be solved outside the litigation. Otherwise, the concept of right and wrong will be subverted, so that those who make "fakes" and sell "fakes" have no sense of shame. On the contrary, it will make people feel ashamed of the consumers who make fakes, and will force those whose behavior has changed into "professional counterfeiters" to "make fakes" and sell fakes again.

Fourth, the lawyer analysis

In recent years, there has been a constant debate about professional counterfeiting. At present, China's current laws do not clearly stipulate this, and judges have discretion in related legal disputes.

According to Item 3 of Article 15 of the Interim Measures for Handling Complaints and Reports in Market Supervision and Management, which was implemented by the State Administration of Market Supervision on June 5438+1 October, 2020, the market supervision and management department will not accept the purchase and use of goods or services unless it is necessary for daily consumption, or it cannot prove that there is a dispute with the respondent about consumer rights and interests. This means that professional counterfeiters will not be supported if they complain to the market supervision and management department and get huge compensation.

It should be pointed out that the current Consumer Protection Law of People's Republic of China (PRC), Food Safety Law of People's Republic of China (PRC) and other relevant laws and regulations do not prohibit the act of buying fakes in the field of food and medicine. Article 3 of the Supreme People's Court's Provisions on Several Issues Concerning the Application of Laws in the Trial of Food and Drug Dispute Cases clearly stipulates that "in the event of a food and drug quality dispute, the buyer claims the rights to the producer and seller, and the producer and seller make a defense on the grounds that the buyer knows that the food and drug still have quality problems, and the people's court will not support it." The reply of the General Office of the Supreme People's Court to the proposal No.5990 of the Fifth Session of the Twelfth National People's Congress (Law-making Letter [20 17]No. 18 1) "How to deal with the act of buying fakes and whether the person who knows the fakes has the identity of consumers" is further clarified. "Considering the particularity of food and drug safety issues and the specific situation of existing judicial interpretation and practice,

The author believes that product quality is related to the health and safety of consumers, and food and medicine are more related to people's livelihood. If the store sells expired food, if it is not punished by the regulatory authorities, it will ultimately be the general public, not the unspecified majority. Ordinary consumers may not spend energy to protect their rights when they buy expired food, but professional counterfeiting can force businesses to operate according to law without damaging the legitimate interests of society.

We support professional counterfeiters to crack down on counterfeiting by legal means, but we are firmly opposed to extortion and forgery of evidence to claim compensation by possession. We also support businesses that operate in good faith to protect their rights, and do not give in to pseudo-professional counterfeiters who maliciously forge evidence to claim compensation.

I hereby remind all businesses to pay attention to business compliance and do a good job of self-examination and self-correction. If you encounter malicious counterfeiting, you must actively respond and deal with it under the following circumstances:

1. If the complaint is reported to the market supervision and management department, carefully review the complaint content reported by the other party. If the situation is true but not intentional, explain it to the market supervision and management department and immediately make positive rectification to limit the adverse effects to a minimum.

2. If you are sued to the court, it is recommended that the merchants carefully collect evidence materials and actively respond to the lawsuit.

3. For professional counterfeiters who use intimidation, threats, extortion and other extortion means, or fabricate product quality problems by replacing or concealing products, or conceal the truth of product quality problems, the merchants shall collect fixed relevant evidence, take the initiative to report to the police and hand it over to the public security organs for handling, and shall not condone such disguised extortion and illegal acts.