Consumer protection

I. Issues at the legal system level

The protection of consumers' rights and interests depends on the law. At present, the main basis of our consumer rights protection work is the Consumer Rights Protection Law promulgated and implemented by 1993. With the increasing prosperity of market economy, many new industries and new things are constantly emerging. When the Consumer Law provides a legal basis for consumer rights protection, it has become increasingly unable to meet the requirements of the times, and the existing problems have become increasingly obvious.

1, the scope of application is a prominent problem in the implementation of the Consumer Law at present. When the Consumer Law was drafted, medical care, education, housing and other fields did not belong to the business nature. However, with the development of market economy, these fields have started to provide services for free to a great extent, which has commercial characteristics, especially the increasing number of consumer disputes in these fields, and there is no clear and sufficient legal basis for handling them.

2. With the development of market economy, especially the emergence of network economy, consumers' right to be infringed has exceeded the scope of nine rights stipulated in Consumer Law, especially the phenomenon of revealing consumers' personal privacy without authorization for profit is not uncommon.

3. The way of safeguarding rights is the key to protect consumers' rights and interests. Although the Consumer Law provides consumers with five ways to protect their rights, in practice, there are such problems that they cannot play an effective role.

Negotiate with the operator. If one party is unwilling to negotiate or fails to negotiate, this road will not work. The mediation of the Consumers Association should be voluntary, and if one party does not volunteer, it will be uncoordinated. Complaints against administrative departments are intertwined with many responsible departments, such as industrial and commercial bureau, quality supervision bureau, health bureau and food and drug administration. Due to unclear division of labor, unclear responsibilities and unclear management, it has caused great difficulties for consumers to protect their rights. Submitting to an arbitration institution for arbitration has the characteristics of high cost, simple procedure and legally mandatory award. However, the arbitration channel needs to be agreed in advance, and it is difficult to agree on the sales contract of daily consumption in advance, and arbitration is rare. Bringing a lawsuit to the court is relatively expensive, difficult to prove, complicated in judicial procedures, and sometimes the value of the subject matter of the complaint is small, so consumers are generally reluctant to take time-consuming, laborious, costly and uncertain litigation.

4. The Consumer Law has no special provisions on the burden of proof. Tianjin male maternity insurance reimbursement process. When consumer disputes require commodity testing, operators use the excuse of "who advocates who gives evidence" to make consumers bear the testing cost, but the high testing cost often exceeds the price of the disputed commodity itself, which makes consumers flinch; Even if problems are found through commodity inspection and appraisal, operators may not recognize the inspection conclusions for various reasons, resulting in responsibility attribution and difficulties in inspection and maintenance. This is an important reason why consumer disputes are difficult to solve at present.

For example, consumers' complaints about mobile phones are increasing at a high speed, and it is easy to disagree whether the mobile phone is artificially damaged or has performance failure during maintenance. The general appraisal is issued by the manufacturer, and consumers are absolutely weak on this issue, but they have to go to the authoritative department for testing. Complicated testing procedures and high costs make consumers flinch.

For another example, in recent years, disputes about automobiles have been constantly emerging and complaints are increasing. The difficulty of automobile quality inspection has always been the biggest problem of automobile consumption rights protection. At present, China's automobile product inspection institutions are not completely independent of automobile production enterprises, lacking some technical standards or equipment, and unable to undertake the inspection of accident vehicles or imported products. Due to the lack of testing methods, some quality problems can't be detected at all, and the cost of testing at the existing level is also very high, which is beyond the affordability of ordinary consumers and increases the difficulty of dispute resolution.

5. There is no administrative penalty clause for violating some operators' obligations in the Consumer Law, which makes these obligations exist in name only. Even if the operator violates it, it will not be punished, which will easily aggravate the violation of consumer rights and interests.

In addition, the lag of some national regulations and standards also leads to difficulties in safeguarding rights. With the expansion of the consumer field, new goods and services are constantly emerging, but the introduction of relevant regulations and standards is obviously lagging behind, which has become a major bottleneck for consumers to protect their rights. For example, LCD TVs and plasma TVs have now entered people's homes, but the "three guarantees" scheme for color TVs is mainly aimed at traditional CRT TVs, while the after-sales service regulations for high-end color TVs such as LCD TVs are still in a vacuum. The current Provisions on Responsibility for Repairing, Replacing and Returning Some Commodities clearly stipulates the warranty scope and duration of CRT TVs. The main components of high-end color TVs such as plasma, rear projection and LCD are not listed, which makes it difficult for the current "three guarantees" regulations to be directly applied to most high-end color TVs. At present, the warranty schemes of flat-panel TVs of various manufacturers are confusing. When selling high-end color TVs, most operators only fully emphasize their advantages over traditional CRT TVs, and avoid talking about the difference between the warranty period of their whole machines and main components and traditional CRT TVs, failing to fulfill their obligation to inform. This is an important reason for the rapid rise of complaints about high-end color TVs.

At the same time, some existing regulations are not conducive to safeguarding rights. For example, the current "three guarantees" stipulate that the daily depreciation rate of mobile phones is 0.5%, while the whole "three guarantees" of mobile phones are valid for one year, which means that after 200 days, the mobile phones within the warranty period are worthless. Moreover, the depreciation rate of the "three guarantees" of mobile phones is much higher than the "Provisions on Responsibility for Repair, Replacement and Return of Some Commodities". Today, with the rapid development of the mobile phone market, such regulations are obviously not conducive to enterprises to improve product quality.

Second, issues at the level of rights protection agencies.

As a legally established social group to supervise goods and services and protect consumers' legitimate rights and interests, consumer associations have undertaken a lot of consumer rights protection work. However, due to the system, establishment, personnel, funds and other reasons, there has been a situation in which the Consumers Association has "enough spare capacity but not enough" to protect rights.

1, the legal effect of the Consumers Association in handling complaints. Although consumer associations are statutory associations endowed with corresponding functions by the Consumer Protection Law, their mediation of consumer disputes is purely a civil act. First, if the operator refuses to mediate and cooperate, the Consumers Association can do nothing; Second, the mediation agreement has no legal effect and is not binding on both parties. If one party fails to perform the contract, the mediation work will undoubtedly fail.

2. The shortage of staff, serious shortage of infrastructure, and difficulties in obtaining evidence, such as cameras, computers, and means of transportation, have put all the work in trouble. The rural market, in particular, has the characteristics of vast territory and relatively scattered residence of villagers, and the supervision power of grass-roots supervision departments is insufficient. Although the construction of "one meeting and two stations" in rural areas of our city has achieved certain results, at present, there are 85 branches of consumer associations/kloc-0, consumer complaint stations and liaison stations in 5507 villages, and social supervisors have been hired. However, the staff of rural rights protection stations (points) need to improve their rights protection business level, and there is still a process of learning and improving the basic knowledge of laws, regulations and commodity rights protection; Part of the work has not been fully carried out due to funds and other reasons, and there is not enough communication with local governments and functional departments such as quality supervision, health and drug supervision. Since the supervisors of rural rights protection are basically village cadres, these cadres often have several jobs, and their daily work is busy, so they spend less time and energy on rights protection supervision. Some villages are still in a state where the shelves are set up, the personnel are equipped, the signs are hung up, the actual work is not carried out well at all, the work situation is difficult to open, and the social effect is not obvious enough.

3. Many of the seven functions of Consumers Association are not institutionalized, standardized, arbitrary and lack of operability, which affects the function.

Third, the problems at the level of producers and operators.

1. The after-sales service brought by the bankruptcy and merger of some enterprises has been neglected. According to the "Three Guarantees" provisions of the Product Quality Law and the Consumer Protection Law, if an enterprise changes, the enterprise that undertakes its rights and obligations shall undertake corresponding obligations, but it is difficult to do so in practice. Before M&A, the after-sales service of some enterprises was paralyzed, no one answered the phone, the maintenance outlets were cancelled, and the maintenance personnel disappeared. After M&A, it is difficult to solve all the after-sales service problems. In the case that some enterprises have not declared bankruptcy or merger, their maintenance and after-sales service will be ignored, not to mention the supply guarantee of spare parts after production suspension, and it is difficult to protect consumers' rights and interests. For example, the shopping card storm at Red Sun Supermarket in our city.

2. The asymmetry of information used by market operators makes it difficult to protect consumers' right to know and infringes on consumers' rights and interests. Nowadays, SMS services are overwhelming, but not many SMS participants can clearly tell consumers how much it costs to send SMS and how to cancel it after customization. Consumers will be deducted quickly after customization, and it is very difficult to cancel it. Many consumers in our city reported that they participated in some activities of TV stations and inexplicably became monthly users of information content providers, and their phone bills were taken away unconsciously.

3. Many natural monopoly industries and administrative monopoly departments have a deep-rooted concept of pursuing monopoly interests, ignoring relevant laws and regulations and seriously infringing on consumers' rights and interests. As a special industry, public utilities have always played an important role in national economic life, but there have always been problems such as poor service quality and single products. Consumers complain about this, and some industries are even labeled as "the boss and the tiger" by consumers. The problem of infringement of consumers' rights and interests brought by monopoly operation is increasingly apparent. In recent years, due to the high monopoly of real estate surveying and mapping, the opaque calculation method of pool area, the confusion in the use of surveying and mapping standards and other reasons, the complaints about shrinking commercial housing area are on the rise. When consumers find the housing area error, it is difficult to get the audit of an authoritative third party outside the administrative region. At present, when consumers buy a house, the actual area on their real estate license is generally measured by the housing mapping brigade under the local real estate bureau. Even if other surveying and mapping units have the right to enter the real estate surveying and mapping market, they are unwilling to undertake the retest for fear of offending their peers. If this serious pattern of industrial monopoly and administrative regional blockade is not broken, the problem will not be solved fairly and satisfactorily for a long time.

4. The phenomenon that some operators use standard contracts to infringe on consumers' rights and interests is still serious. Inconsistent or overbearing clauses in current insurance contracts are very common. Some insurance companies use standard contract clauses to arbitrarily deprive consumers of their rights and evade the obligations of operators. Some clauses are contrary to the current Insurance Law, Contract Law, Consumer Protection Law and other relevant provisions, and infringe upon the legitimate rights and interests of consumers. Moreover, there are still some problems in the standard clauses of existing insurance contracts, such as obscure terms and too many insurance technical terms. Most consumers don't have the expertise in this field. Once there is a contract dispute with an insurance company, its legitimate rights and interests will be difficult to safeguard.

5. Some market operators lack the knowledge of laws and regulations, and their study does not cooperate with the work of the Consumers Association and other institutions. For example, a consumer in our city complained that the floor tiles in Fang Dahong had quality problems. Comrades of the Consumers Association called the operators three times and asked them to come to the Consumers Association for mediation. They didn't come until they delivered a written notice at home.

6. Some market operators adopt the method of "dragging" to solve disputes over rights protection. When consumers encounter consumption disputes, they often go to the operators first, so as to solve them by themselves. If negotiation fails, I will complain to the consumer association. Operators often delay, delay time, exceed the "three guarantees" period of commodities, and some miss the best period of commodity quality inspection, resulting in complaints that cannot be accepted and mediated.

Fourth, the problem at the consumer level.

1, consumers' own consumption habits and consumption consciousness are backward, which brings some undue troubles. Many consumers don't have the habit of asking for invoices, some because the purchase amount is small, some because they are neighbors and acquaintances and don't ask for invoices, so that the claim is unfounded. Many commodities (especially agricultural materials) are bought by consumers without knowing the quality of the commodities at all, and it has been quite a long time since they knew that there was something wrong with the quality of the commodities, and the merchants do not admit the commodities they sell. Because there is no invoice, such consumer disputes can not be accepted by the Consumers Association, and consumers can only go away.

2. Some consumers are greedy for petty gain, knowing and buying fakes, so that their rights and interests are not protected by law. Such as buying "parallel" mobile phones, counterfeit brand-name clothing and so on.

3. Some consumers have poor awareness of rights protection. After their rights are damaged, they often submit to humiliation and do not take action to safeguard their rights, which encourages the bad behavior of fake and shoddy producers and manufacturers who lack integrity.

4. Some consumers have irrational rights protection phenomena, such as consumer fraud, malicious return of goods, threatening complaints with threats for the purpose of demanding huge compensation or venting personal anger, etc. If a consumer in our city complains about the quality of rural folk-song bagged milk, he demands compensation of 5,000 yuan.

In view of the above problems existing in the work of consumer rights protection in our city, we believe that the work of consumer rights protection under the new situation needs the active cooperation and participation of all sectors of society and the people. It is necessary to build a socialized rights protection network, expand the rights protection work to all fields, levels and corners of society, and realize the interconnection of rights protection networks, the exchange of rights protection information, the interaction of rights protection work and the optimization of rights protection efficiency.

First, continue to strengthen the publicity of consumer rights protection and issue "consumer warnings" in a timely manner. Consumer protection departments at all levels should take various forms, make use of various propaganda tools, carry out series of reports, open up columns, strengthen the publicity of consumer protection work, make consumer protection work deeply rooted in people's hearts and society, arouse people's awareness of consumer protection, and guide people to consume correctly.

Second, establish a mechanism for safeguarding rights through departmental cooperation. The protection of consumers' rights and interests involves many government departments and is a comprehensive government action, which should be taken as a task of governments at all levels. Establish a consumer rights protection cooperation linkage network led by the local government and composed of relevant government functional departments and judicial organs such as industry and commerce, public security, quality supervision, culture, health, food and drug supervision and management, and justice, integrate the law enforcement forces of the departments, and timely divert consumer complaints, reports and consultations accepted by the Consumers Association to relevant departments for handling, thus forming a joint effort of government departments to protect rights.

Third, continue to carry out in-depth anti-counterfeiting and rights protection work. Consumer rights protection work must focus on counterfeiting, take effective measures, combine daily inspection and centralized rectification, and continue to crack down on counterfeiting and shoddy behavior. It is necessary to constantly sum up the experience of previous work, further expand the field of counterfeiting on the basis of the work results already achieved, and protect the legitimate rights and interests of consumers to the maximum extent.

Fourth, actively build a high-quality consumer protection team. From the aspects of staffing, financial guarantee and hardware facilities, we will continuously strengthen the system construction of consumer associations, improve the mediation mechanism and improve the mediation ability. Focus on improving the quarterly complaint information release system and the disclosure system of major illegal cases.

Fifth, give full play to the role of "one meeting and two stops" in facilitating people and safeguarding rights. Conscientiously implement the Opinions on Standardization Construction of "One Meeting and Two Stations" forwarded by the General Office of the Provincial Government to the Provincial Administration for Industry and Commerce, actively strive for the strong support of party committees and governments at all levels, strengthen supervision and inspection, increase publicity and training, seriously standardize the working system and process of "one meeting and two stations", and truly form a working pattern of "government leading, coordination and linkage, rural construction and mass participation".

Sixth, further improve the construction of letters and visits network. Establish an administrative law enforcement system centered on accepting complaints and reports, administrative law enforcement and market supervision, and a vertical consumer rights protection network linked by the municipal, county (district) industrial and commercial bureaus and grass-roots industrial and commercial branches. On this basis, with the provincial industrial and commercial bureaus at all levels as the link and the command centers of local industrial and commercial bureaus as the contact point, a horizontal law enforcement and rights protection network of inter-provincial industrial and commercial administrative organs will be formed, and a remote relief mechanism for consumer rights protection with interconnection, equal consultation, mutual coordination, cooperation and mutual recognition and information sharing will be gradually formed.

Seventh, give full play to the self-discipline of trade associations and chambers of commerce. Through the establishment of industry self-discipline service network composed of various industry associations, public service units and large and medium-sized commercial enterprises. Strengthen the publicity and education of enterprises' law-abiding and honest management, guide operators to establish the management consciousness of "taking the right path, selling the right goods and building the right brand", let the internal self-discipline of trade associations serve the work of consumer rights protection, and let trade associations take the initiative to resolve disputes between enterprises and consumers.