Please list the typical cases that infringe on consumers' rights and interests.

Fraud and punitive damages in China's consumer rights protection law

Wang Weiguo (Professor, China University of Political Science and Law)

I. Introduction

Since the promulgation of 1993 10 China's Consumer Protection Law (hereinafter referred to as the Consumer Protection Law), litigation and non-litigation cases related to consumer protection have increased dramatically. It is reported that in 1996, China's industrial and commercial administrations at all levels accepted a total of 425,008 consumer complaints, 75 times that of 10 years ago. [1] These complaints involve quality, price, false advertising, counterfeit goods, measurement and fraudulent sales. Among them, fraudulent sales cases increased the most, accounting for 137.9% of the previous year. [2] In such cases, the most striking clause in the Consumer Protection Law is Article 49, which reads as follows:

Where a business operator commits fraudulent acts in providing goods or services, it shall increase the compensation for the losses it has suffered according to the requirements of consumers, and the amount of compensation shall be twice the price of the goods purchased by consumers or the cost of receiving services.

It is this provision that has greatly stimulated the anti-fraud struggle known as the "anti-counterfeiting campaign" in recent years. There are many cases in which this provision is applied. In the streets, news media, courts, university classrooms and government agencies, these cases have become the object of discussion and even debate. Article 49 of the Consumer Protection Law has become a hot spot in the field of consumer protection in China.

Of course, this is just the beginning. In order to make article 49 of the Consumer Protection Law more effectively used and promote the further development of consumer protection legislation, some legal issues need to be clarified. Therefore, it is worth trying to compare with the experience of Australian interests, especially with Article 52 of Australia's Trade Practices Act. [3] Article 52 of the Australian Commercial Law provides as follows:

Article 52 (1) An enterprise shall not mislead or deceive others in its trading or business activities.

(2) The following provisions of this article shall not be inferred as limiting the general provisions of the preceding paragraph.

This paper will first introduce several cases related to Article 49 of the Consumer Protection Law, then raise some legal issues, analyze them by comparative methods, and finally put forward some opinions in the conclusion.

Second, the relevant cases of Article 49 of the Consumer Protection Law

1. Wang Hai's counterfeiting case

1In the spring of 995, Wang Hai, a young salesman from a factory in Shandong, came to Beijing on business. He happened to buy a book introducing the consumer protection law. He was attracted by Article 49 of the Consumer Protection Law. In order to verify the feasibility of this regulation, he came to Long Fu Building and saw a kind of "Sony" earphone marked "Made in Japan", the unit price was 85 yuan. He suspected it was a fake, so he bought a pair and found Sony's Beijing office. After being confirmed as a fake, he went back to Long Fu Building and bought 10 pairs of identical headphones, and then requested double indemnity in the shopping mall according to Article 49 of the Consumer Protection Law. The store agreed to return the first pair of headphones and compensate 200 yuan, but refused to give any compensation to the following pair of 10, on the grounds that he "bought fakes knowing them" and "exploited the loophole of the law". Wang also felt angry. He believes that his purpose is not to make money but to protect the interests of consumers, so he is determined to continue fighting.

In the autumn of the same year, Wang Hai came to Beijing again. He visited many shops and bought goods that he thought were fakes. After confirmation, he asked the merchant double indemnity. Most shops met his requirements, but a few refused.

After Wang Hai's action was disclosed by the news media, it caused repercussions all over the country. He was praised as a hero by most ordinary people and even many operators, and at the same time shocked the counterfeiters and sellers. 199665438+In February, China Consumer Foundation gave him a bonus.

At the same time, Wang Hai's practice has also become a controversial topic in the legal field. Some officials and scholars are critical of this. For example, an official of the Ministry of Internal Trade thinks that people who buy fake goods for profit and then demand double indemnity are not real "consumers" within the scope of current legislation, so people who "buy fake goods knowing they are fake goods" cannot get compensation. If you buy what you think, you are a consumer after using it, but you are not a consumer after using it. [4] There are also some scholars who believe that the behavior of "buying fake while knowing it" is immoral, and the benefits obtained from it belong to unjust enrichment. [5]

On the contrary, many legal workers and scholars support Wang Hai's behavior. They pointed out that the word "consumer" is relative to "operator", and anyone who deals with the operator should be regarded as a consumer except himself. In their view, it is ethical to "buy fakes knowing them" and then demand double indemnity, because it will help to crack down on counterfeit products, thus benefiting people and society. Others believe that the claimant's income cannot be described as unjust enrichment, because such claims are based on legal provisions and require a lot of time, manpower and expenses. [6]

1at the beginning of 996, Wang Hai moved to the south and bought fake claims in many big shopping malls. However, the envy of businessmen and the indifference of the local government forced him to return in vain. As some lawyers have summed up, the lesson is that there is no weapon of legal proceedings; It is not enough to rely solely on the pressure of news media and public opinion.

1996165438+1October, Wang Hai became the winning party in a court in Tianjin. Following the case of He Shan v Lewanda Commercial Bank (see below), he sued Isetan Co., Ltd. for fraudulent telemarketing. Therefore, he obtained the double indemnity in accordance with Article 49 of the Consumer Protection Law. [7]

2. Geng v. Nanjing Central Shopping Mall.

1996 In the spring, when Wang Hai was frustrated repeatedly in Nanjing, a consumer named Geng also experienced the same fate in a court in Nanjing. On October 4th, 65438/KLOC-0, Geng bought three "Bai Sheng" brand warm shirts marked "cashmere sweater" in Nanjing Central Shopping Center. On the invoice issued by the shopping mall, it is indicated that the goods are "cashmere shirts", but in fact the cashmere content of the goods is less than 2%. The next day, Geng asked the mall to pay double indemnity in accordance with Article 49 of the Consumer Protection Law on the grounds that the shirt was not cashmere and the mall was fraudulent. After being rejected, he filed a lawsuit with the court. The court rejected his request. The court held that the plaintiff had bought the same shirt in another shopping mall and received compensation before buying it from the defendant on October 4, 65438/KLOC-0, and had a certain understanding of the goods. Another reason for the court's decision is that it is not improper to label a shirt containing 2% cashmere as a "cashmere shirt" and the defendant does not constitute fraud.

Li Yougen, a young scholar and a lecturer at Nanjing University Law School, wrote a paper and commented on the case of Gengmou v. Nanjing Central Shopping Mall. [8] He raised three issues that are considered to be very important in this case: First, whether the person who knows the fake belongs to the consumer, and whether he is entitled to the relief of the Consumer Protection Law? Second, can the defendant's way of selling goods be regarded as fraud? Thirdly, if the plaintiff knows the truth, can this way of the defendant still be regarded as fraud, so the provisions of the Consumer Protection Law on double indemnity can be applied?

Li Yougen pointed out that there is a paradox in the judgment that "those who know and buy fakes are not consumers". If you know that the buyer of fake goods is not a consumer, according to the Consumer Protection Law, he is not qualified to ask for a return, so you can only use it. In this way, he became a real consumer.

Li Yougen believes that one of the criteria for determining fraud is the provisions of the law. Article 19 of the law on the protection of consumers' rights and interests stipulates: "business operators shall provide consumers with true information about goods or services, and shall not make misleading false propaganda." According to the relevant regulations of the Ministry of Textile, cashmere products with cashmere content less than 5% cannot be called cashmere products. Another criterion is the cognitive level of ordinary consumers (not experts). On this basis, he believes that shopping malls constitute fraud, because shirts with only 2% cashmere content cannot be called "cashmere shirts" in the eyes of ordinary consumers.

3. Case of He Shan v. Lewanda Commercial Bank He Shan is an official of NPC Law Committee and participated in the drafting of Consumer Protection Law. 1April, 1996, I bought two paintings at Lewanda Commercial Firm, which deals in celebrity calligraphy and painting. These two paintings, one of which is a single horse and the other is a group of horses, are sold as the original works of the late master of Chinese painting, Mr. Xu Beihong. A month later, He Shan filed a lawsuit in Beijing Xicheng District Court on the grounds of "suspected falsehood and requesting protection". 1in August, 1996, the court ruled that two paintings were imitations, and the defendant committed fraud. Therefore, according to Article 49 of the Consumer Protection Law, the defendant was ordered to file a lawsuit against the plaintiff double indemnity. [9]

This case has aroused widespread concern and many discussions. 1996 10 the second double indemnity symposium on preventing fraud was held in Beijing. At the meeting, how to correctly understand the legislative intent of Article 49 of the Consumer Protection Law once again became the central topic. Su Chi, vice president of No.1 Middle School, expressed his opinions at the meeting. He pointed out that the meaning of "for daily consumption needs" mentioned in Article 2 of the Consumer Protection Law should not be interpreted restrictively. According to its original intention, the word "consumer" only refers to people other than producers and operators. [10] He advocates that all customers who go shopping in the store should be regarded as consumers; As for the motivation and purpose of buying, it may involve moral issues, but it does not belong to legal issues. [1 1] Zhang, the president of the civil court of Haidian District People's Court in Beijing, reached the same conclusion according to the trial practice of his court. In his view, article 49 of the Consumer Protection Law should be applied as long as there is fraudulent behavior by commodity operators, regardless of consumers' shopping motives. [ 12]

Mr Su Chi responded to the view that fraud must be intentional. He pointed out that merchants are obliged to carefully check the goods they operate when purchasing. Those who fail to fulfill this obligation are at least subjectively laissez-faire and should be considered intentional. [ 13]

After He Shan v Lewanda Commercial Bank, many cases based on this model were brought to court. But not all plaintiffs have got satisfactory results. The next case is an example.

4. Xue Ping v Beijing Yansha Friendship Mall.

1March, 997, Xue Ping bought three terracotta warriors and horses of Qin Shihuang in Yansha Friendship Mall. A few days later, she learned that the terracotta warriors and horses were imitations, so she negotiated with the shopping mall and demanded compensation at twice the selling price. After being rejected, she filed a lawsuit with the People's Court of Chaoyang District, Beijing on the grounds that the goods did not have any marks that could indicate that they were imitations. The mall counterclaimed that the plaintiff knew that these terracotta warriors and horses were imitations when they bought them, and the purpose of their purchase was to obtain double indemnity, which constituted fraud. The court held that the plaintiff should know that the goods she bought could not be genuine, because the Terracotta Warriors and Horses of the First Qin Dynasty were precious cultural relics prohibited from market transactions by the state. That is to say, normal consumers should realize that goods are imitations when sellers neither tell the truth nor call them genuine. On the other hand, the court also held that the defendant should have made a rigorous and clear explanation of the nature of the goods by clearly stating that the Terracotta Warriors and Horses were imitations, so that no one would misunderstand. Finally, the court ruled that the defendant returned the goods, rejected the plaintiff's other claims, and both parties bear half of the litigation costs. [ 14]

III. Legal Analysis of Article 49 of the Consumer Protection Law

As can be seen from the above cases, the provisions of Article 49 of the Consumer Protection Law are still inconclusive in some major aspects. Many different opinions expressed by people are certainly valuable, but most of them are limited to the interpretation of legal provisions. Besides, we should realize that we should not only interpret the law, but also reform and develop it.

As far as Article 49 of the Law on the Protection of Consumer Rights and Interests is concerned, I want to point out that in the discussion around the above-mentioned cases, an important thing has been neglected, that is, the nature of this article, which should have been the starting point of argumentation and reasoning.

1. Nature and purpose

In China, it has been recognized that Article 49 of the Consumer Protection Law belongs to punitive damages in nature, which is the first legislative case in China to apply punitive damages. [15] As we all know, punitive damages have never been recognized as a form of civil liability in the civil law system. China's General Principles of Civil Law follows this tradition, so there is no provision for punitive damages in this law. It is believed that "civil liability aims at restoring infringed civil rights" in principle, so "most forms of civil liability are not punitive". [16] However, some civil law scholars insist that civil liability has dual functions: on the one hand, it can curb illegal acts through sanctions; On the other hand, through compensation, the damaged rights are relieved. [17] This view leaves room for the determination of punitive damages. Another factor to be mentioned here is China's compromise attitude towards major legal systems in "learning from foreign experience". We do not hesitate to adopt the punitive damages system, because it meets the needs of our society, regardless of whether it conforms to the conceptual system of the civil law system. In addition, we adopt this system according to the social conditions in China. Therefore, there is a certain degree of difference between punitive damages in China's current law and punitive damages in common law system.

In the common law system, "punitive" compensation refers to the compensation awarded to one party to punish the other. In addition to compensatory damages, courts usually apply this principle in some cases (such as fraud). "It not only declares the court's disapproval of the defendant's behavior, but also aims to prevent him from repeating this behavior and may further prevent others from imitating it." [18] The main purpose of punitive damages is to "punish and stop" offenders. [ 19]

However, in China, Article 49 of the Consumer Protection Law has another purpose, which is to encourage consumers to crack down on fraud and counterfeit goods (except punishment and suppression). [20] According to the experience of Chinese and foreign consumer protection movements, this kind of encouragement is very important for the purpose of punishment and suppression. We know that in the modern market, there are many scattered incidents of selling fakes and committing fraud. First of all, because of the high frequency of this kind of behavior, selling fake goods or providing services fraudulently is not only an infringement on the private interests of individual consumers, but also an infringement on the interests of all consumers. In China, consumer rights are essentially social rights, not pure private rights. Therefore, fraud in consumer protection law is a special tort; The law should take special measures to control this kind of behavior. Secondly, due to the dispersion of this behavior, there is a problem of "responsibility probability". That is to say, in practice, a large number of consumers give up their claim for various reasons, which makes the cost paid by the actor because of his illegal behavior far lower than the profit he gets from it. Implementing this kind of infringement has become a profitable activity. The provision of punitive damages can increase the number of cases in which the right of claim is exercised and the amount of compensation in a single case, and increase the "probability of taking responsibility", thus making the wrongdoer feel unprofitable and even suffer losses. In this way, this behavior can be reduced. Another consideration in adopting punitive damages in legislation is the claimant's expenses. In legal practice, the compensatory damages received by the injured consumers are often lower than their actual losses. Some costs, such as cost and time, energy and anxiety, are also difficult to be compensated through judicial procedures. This is also a reason why many consumers are unwilling to take their rights seriously. Punitive damages are expected to provide more adequate compensation for the claimant. Even if someone gets more compensation than their actual loss, it can't be said that it is unfair. This income can be regarded as a reward for his anti-counterfeiting action, because this action is not only beneficial to himself, but also to the public. This can be regarded as a policy of "letting fake sellers subsidize counterfeiting". On the surface, Article 52 of Australian Business Law is quite different. As Judge Fox pointed out: "It has no intention of creating responsibility; More precisely, it is to establish a code of conduct, and those who do not abide by this code will bear the consequences stipulated by other provisions of this law or general laws. " [2 1] However, like Article 49 of the Law on the Protection of Consumer Rights and Interests in China, this article has also become a noticeable focus in judicial practice, and the related cases have increased year by year. [22] I think this provision is effective in practice, because it has two characteristics: first, according to the relevant interpretation, Article 52 is supported by the general principles of tort law. As Judge Fox said: "The accepted concepts, such as the concepts of fraud and infringement of selling counterfeit goods, and the analysis of these concepts over the years can prove helpful to the judgment of cases according to Article 52." According to the common law, "when the defendant's behavior is intentional for his own benefit, which may greatly exceed the compensation he may pay to the plaintiff", the court has the right to order the payment of punitive damages. [23] Second, the rules of conduct in Article 52 have a wide scope of application. The Australian High Court held that "Article 52 has no clear boundary." [24] "Since consumer protection is the core of Article 52, the High Court refused to clearly define the scope of application of this Article." Under such a system, people can make full use of this legal weapon, so it is possible to effectively punish and stop fraud.

2. Scope of application

From the above analysis, it can be seen that the scope of application of Article 49 of the Consumer Protection Law should obviously not be limited to "buyers and users". When applying this clause, the buyer's motivation is not a factor that must be considered. Coincidentally, Article 52 of the Australian Commercial Code also takes a similar position. It is said that this article focuses on business-to-person behavior, and his only requirement for this behavior is that the transaction must be of a trade or commercial nature. [25] As for people who deal with enterprises, it is meaningless to discuss whether they are consumers; In fact, the word "consumer" does not appear at all in this article.

Indeed, as some judges and scholars pointed out in the above-mentioned cases, Article 2 of China's Consumer Protection Law cannot be interpreted as limiting the scope of application of Article 49. Article 52, paragraph 2, of the Australian Business Act seems to contain the same meaning. This clause shows that the commercial law is wary of quoting other clauses to interpret this clause 1 arbitrarily.

In the case of Gengmou v. Nanjing Central Shopping Mall, the court rejected the plaintiff's claim on the grounds that he "has a certain understanding of goods". This is very strange. If the purpose of the law is to encourage people to fight against counterfeit goods, of course, those who have the necessary commodity knowledge will not be excluded from this struggle. Does the law expect those who know nothing about goods to take counterfeiters to court? This reminds me of a rule created by a British judge in the famous "eggshell head" case in the history of tort law: "The infringer must treat him as the victim he finds." [26] This means that the wrongdoer is not qualified to find fault with his victims. Obviously, a scam will not be justified just because it is seen through.

3. Definition of behavior

The key word of Article 49 of the Consumer Protection Law is "fraud". Similarly, Article 52 of the Australian Business Law focuses on "misleading or deceptive behavior or behavior that may mislead or deceive people", and this term seems to have been carefully and accurately scrutinized. Now let's discuss some issues related to the meaning and application of "fraud" and compare it with the experience of Article 52 of the Australian Commercial Law. In article 2 of 1996 "Punishment Measures for Consumer Fraud" (hereinafter referred to as "Punishment Measures") issued by China State Administration for Industry and Commerce in March, "Consumer Fraud" is defined as "the behavior that an operator deceives and misleads consumers by false or other improper means and harms their legitimate rights and interests when providing goods (hereinafter referred to as goods including services) or services". This definition is often cited in judicial practice. There are several points to be clarified here.

Testing method of (1) behavior

According to Article 49 of the Consumer Protection Law and the Punishment Measures, "fraud" should be tested and identified in an objective way, that is, according to the means used by merchants in selling goods and providing services. Article 3 of the punishment measures lists some typical fraudulent acts, including: (1) selling adulterated and shoddy goods; (2) Selling commodities at false "clearance price", "sale price", "lowest price", "preferential price" or other deceptive prices; (3) Selling commodities by means of false commodity descriptions, commodity standards and physical samples; (four) do not sell goods with real names and marks; (5) Hiring others for deceptive sales inducement, etc. ; (6) making false propaganda of commodities by using mass media such as radio, television, movies, newspapers and periodicals. Of course, there are also acts of selling fake and shoddy goods and invalid and deteriorated goods, which are stipulated in Article 4 of the Measures. In practice, all these behaviors can be determined according to objective facts (or appearances of business behaviors).

It can be found that the Australian courts also adopted the objective test method when applying Article 52 of the Commercial Law. The judge believes that "whether an act is misleading or deceptive is a matter of fact, which needs to be determined according to the evidence about the act and its related facts and circumstances. Regardless of whether the behavior may be misunderstood or not, as long as all these circumstances show that it contains or conveys false statements, it can be classified as misleading in Article 52. " [27]

(2) the result of behavior

According to China's civil law, theoretically speaking, the concept of "fraudulent act" is different from "civil act committed because of fraud". The latter refers to the behavior of the victim, while the former refers to the behavior of the wrongdoer; The latter is caused by the former. Therefore, the actual result is not a necessary condition when determining fraud.

Although Article 2 of the Punishment Measures contains the words "harming the legitimate rights and interests of consumers", it does not mean that actual losses or damages are needed. As long as the behavior of merchants is enough to mislead consumers and bring certain disadvantages to consumers, it can be considered as fraud.

In Australia, Article 52 of the Commercial Law expresses this view more directly. The expression "may mislead or deceive people" itself indicates that "there is no need to prove that the disputed behavior actually deceives or misunderstands people". [28]

(3) Subjective factors

According to the concept of China's civil law, fraud includes two elements, one is objective and the other is subjective. Objective elements refer to certain actions or omissions, such as false statements or concealment of the truth. Subjective factors refer to the intention of carrying out such actions or omissions. If a person knows that his statement or concealment will cause harm to others, it is intentional.

As far as "fraud" in the Consumer Protection Law is concerned, whether subjective elements are necessary is worth studying. Some people in the legal profession believe that the negligence of merchants in purchasing goods should be considered as intentional. This statement is neither accurate nor necessary. According to the legislative policy of the Consumer Protection Law, the civil liability for fraud stipulated in Article 49 should be understood as a no-fault liability (or strict liability). This kind of responsibility can be stipulated by special law, and the consumer protection law has the nature of special law. [29] Therefore, there is no need to consider the subjective state of the person accused of selling fake goods.

Australian jurists hold the same view when interpreting Article 52 of the Commercial Law. As Professor R. Miller pointed out: "According to Article 52, the internal will of the defendant is irrelevant. The only concern is whether the behavior is misleading or deceptive, or may mislead or deceive people. " "If an enterprise is accused of violating Article 52 when stating past or present facts, the will state of the enterprise is meaningless unless the statement contains the will state of the enterprise. Whether it violates Article 52 depends on whether the statement actually contains or conveys false meaning, not on the intention or belief of the enterprise. " [30] Judge Fox pointed out: "Intention is not a necessary element. ..... This kind of infringement is relatively objective, but the concept of rational person applying the hypothesis here is not correct. A person looks at the audience, or some of them, … and asks them whether this behavior is misleading or cheating, but the question to ask is not only that they (or he) are misled. Whether the act is misleading or deceptive is a matter for the court to decide. " [3 1]

4. Subjective state of the requester

In a sense, consumer protection cases can be regarded as cases between individual operators and all consumers. It can be properly said that the subjective state of a specific claimant does not affect the application of Article 49 of the Consumer Protection Law. Only the objective state of the operator's behavior affects its application. That is such a question: has this behavior caused misunderstanding among ordinary consumers? This is within the control of the operator. If the operator's behavior is enough to mislead ordinary consumers, it constitutes fraud; This is true even if the specific requester is "knowing the fake and buying the fake". On the other hand, if it is not enough to mislead ordinary consumers, even if the requester does have a misunderstanding, it does not constitute fraud.

This view has been adopted in China's judicial practice. The case of Xue Ping v. Beijing Yansha Friendship Mall mentioned above is an example. The solution that can be summed up from this case is that if the business operator's behavior is not enough to mislead the general consumers, but it may make individuals misunderstand, Article 49 of the Consumer Protection Law cannot be applied. At this time, the provisions of Article 59 of the General Principles of Civil Law can be applied. [32] In this case, according to Article 6 1 of the General Principles of Civil Law, one of its legal consequences is that one party should return the property obtained by the act to the other party. As for the responsibility for the losses caused by this behavior, it depends on the fault of the parties and the status of causality. If the operator is at fault, his behavior is a necessary condition to cause losses, even if it is not a sufficient condition to compensate the claimant for misunderstanding, he should also make compensatory compensation; On the other hand, the claimant should bear his own losses. If both parties are at fault, they should share the losses in proportion to their responsibilities. The experience of Australia can support this view. Professor Miller concluded on the basis of some precedents: "What if a statement is not taken seriously by any normal person, but a stupid person is misled by it?" On the one hand, the test method that violates Article 52 is objective, and the common law test method of' rational person' is obviously not applicable. On the other hand, although the requester is actually misled, the average rational person will not be misled when he hears the same statement, and this will happen. In this case, there was no violation of article 52. " [33]

5. Causality

If the business operator's behavior is enough to mislead the normal attention of ordinary consumers, the claimant's intention or negligence shall not be used as a defense. On the other hand, if the operator's behavior is not enough to mislead consumers who pay attention to it normally, even if his words are untrue or not reported truthfully, then it cannot be considered as fraud. In this case, people who are misunderstood due to excessive negligence should not be protected by Article 49 of the Consumer Protection Law. The legal policy contained here is that the risks of operators should be limited to the extent that they should and can foresee and prevent misunderstandings of ordinary consumers.

In Australia, "in many cases, the court considers how to deal with the position of people who fail to pay reasonable attention and are misunderstood." [34] For example, in a case involving a restaurant with the same name, Judge franki said that "excessively stupid people" should not be protected. [35] In another case, a junior lawyer was believed to have believed the misleading planning certificate attached to the sales contract. In this case, the court pointed out: "It is conceivable that in a case, the plaintiff was so negligent in protecting his rights and interests that he could find that the defendant's statement was not his real motive for concluding the contract at that time. In this case, the causal relationship between the false statement and the damage has been cut off due to the negligent intervention of the requester. " [36]

It should be pointed out that since there is no provision on punitive damages in Article 52 of the Commercial Law, the burden of proof to prove the causal relationship between the accused act and the damage shall be borne by the plaintiff. As the Australian court pointed out: "To claim compensation, the claimant must prove that the loss or damage claimed is based on a violation of the Act." [37]

In contrast, in China, people who make requests under the Consumer Protection Law usually do not bear this burden; He only needs to prove that he has paid the price for the commodity or service when the operator commits fraud. Evidence of actual loss or damage is usually unnecessary, because double indemnity may be enough. Of course, as long as the claimant can prove that he has indeed suffered losses or damages exceeding double the price, he can get compensation exceeding double the price. According to the principle of civil law, the victim has the right to claim full compensation for actual loss or damage. However, in this case, the general provisions of civil liability should be applied, although this is not as convenient as the provisions of Article 49 of the Consumer Protection Law.

Four. conclusion

Undoubtedly, the consumer protection law, as a special law, needs the support of ordinary civil law. Therefore, for Article 49 of the Consumer Protection Law, the coordination of relevant rules in the civil liability system is indispensable. This may be difficult, because the difference between special law and common law should be bridged through legal interpretation and even legal reform. Another problem is that many judges are accustomed to applying the general concept of civil law to current cases, but often ignore the special legal policies contained in the provisions of the special regulations to be applied. Therefore, we should use case studies more and improve the methods of case studies. For example, because the traditional way of thinking in the civil law system is generally deductive, judges in China are not as active as their Australian counterparts in interpreting and even creating legal rules. It is not difficult to understand that in Australia, the interpretation of Article 52 of the Commercial Law always comes from judicial practice, while in China, on the contrary, the interpretation of Article 49 of the Consumer Protection Law mostly comes from academic research.

(The original Law 1998 No.3, pp. 22-28. Reprinted in the 6th issue of Civil and Commercial Law 1998 by China Renmin University)