Editor's note: Whether does the person that the profession makes a holiday belong to consumer, put in tremendous controversy in solid Wuzhongyizhi. On March 6, 2019 a judgment of Qingdao quadrangle " person of the person that the profession makes a holiday is consumer " the problem undertakes be treatised in detail. Small make up special will this part discusses cento to be as follows in judgment:
Qingdao quadrangle thinks, "One, the standard that judges consumer, not be the subjective condition with buying principal part, it is a standard with the property of the content of mark however;
2, the person that make a holiday to the profession hard gives a definition. Does consumer hit a holiday to there is index? Common the person that the person that make a holiday hits a holiday to make a holiday into the profession with respect to change how many times, give out hard such standard;
3, making a holiday is meddlesome not be evildoing. The person make a holiday with legal successful provision has authority to advocate castigatory sex compensation, show law encourages dozen of holiday, making a holiday is meddlesome. Making a holiday is meddlesome, hit a holiday 10 times to become bad thing impossibly;
4, even if when the person that the profession with accepted society makes a holiday buys means of subsistence, also cannot change the status of its consumer;
The end that hits a holiday is possible to gain profit, anybody lawsuit is for the interest, everybody is dinkum go to what the court will meet with to experience proceeding, civil suit is such, administrative lawsuit, criminal lawsuit also is such, cannot the purpose because of party is to gain profit, the court rejects the litigant request of suitor. Interest component is legal interest and illegal profit, what the court protects is legal interest, negative is illegal profit. Those who make false, carry out holiday get is illegal profit, hitting what the holiday gets is legal interest, to get lawful benefit, give no cause for more criticism. The interest that asks forensic support makes false, carry out holiday makes false profit in the negative, be with the person that make false, carry out holiday the accent of a footing.
The person that the some people muzzle alignment law makes a holiday, the person that do sell one's own things to make a holiday is painful, the issue with the sharp person that make false, carry out holiday, deviate from the basiccest people volition, because everybody is consumer, " consumer rights and interests protects a law " the volition that is people. Hit a holiday to also need major, if make a holiday for many times person the word that can define the person that make a holiday for the profession, so the pioneer that the person that the profession makes a holiday is consumer, suffer naturally " consumer rights and interests protects a law " protection. If forbid the consumer of know the inside story to make a holiday, can create such result: Unwitting consumer makes a holiday impossibly, and the consumer of know the inside story forbids to make a holiday again, it is OK to make false conduct of false carry out hall and of emperor was popular, if this is planted,absurd notion can hold water, so " consumer rights and interests protects a law " legislative tenet is OK instead makes the amulet of holiday of false carry out. So " consumer rights and interests protects a law " legislative tenet is OK instead makes the amulet of holiday of false carry out..
Shandong saves court of Qingdao city intermediate people
Civil judgment
(2019) rash 02 civilian eventually 263
Appellant (first trial accuser) : Han Fukun, male, was born on January 20, 1991, the Han nationality, shandong of census register seat saves Cao county.
Entrust litigant agent: Cao Yanmin, shandong east solicitor of mark attorney office.
Entrust litigant agent: Hua Zi , shandong east lawyer of exercitation of mark attorney office.
Appellee (first trial the accused) : Li Cang division is much better and wholesale supermarket, li Cang district of city of abode ground Qingdao 9 water east date of ** of road *** date.
Operator Zhang Chunxia, female, was born on Feburary 4, 1973, the Han nationality, shandong of census register seat visits area of peony of He lustre city, show Qingdao city Li Cang district.
Entrust litigant agent: Zang Lai closes, law of Jin Xu of Qingdao plum dark blue serves place law worker.
Appellant Han Fu Kun and division of appellant Li Cang are much better and wholesale dispute of supermarket product liability one case, appellant Han Fu Kun refuses to obey court of people of Qingdao city Li Cang district (2018) rash 0213 civilian first 3860 civil judgments, mention to this academy appeal. After this academy accepts this proposal, by the judge Sun Zhiyuan holds the position of a presiding judge, with the judge You Zhichun of Yu Ruijun, judge comprised collegiate bench to hear this case lawfully. This case already was tried now terminative.
First instance lawsuit requests accuser Han Fu Kun: 1, adjudicate 20160 yuan to the accused returns those who return accuser individual consumption to buy payment for goods lawfully. 2, the accused pays this to buy payment for goods to accuser decuple compensation 201600 yuan. 3, this case legal cost is lost by the accused load. Fact and reason: Accuser bought 6 SALVALAI Gan Gonghe early or late at was in the accused place with 5 days on July 1, 2018 one box SALVALAI red wine. Add up to twice 12, accuser pays 20160 yuan, the accused opened bill to accuser. After accuser buys afore-mentioned red wine, discover body of this red wine is not stickup Chinese label. Basis " law of safety of food of People's Republic of China " the 97th regulation, this red wine belongs to the product that prohibits importing, the accused knows perfectly well this red wine not to accord with standard of safety of our country food to still sell to accuser, enroach on the legitimate rights and interests of accuser.
Court of first instance holds a fact: On July 1, 2018, on July 5, accuser bought red wine of each 6 bottles of SALVALAI twice early or late in the accused place (the name of an article: Amaluoni Wei the rank of nobility claret 2010) , add up to 12 bottles, accuser pays wine money to add up to 20160 yuan to the accused through brushing calorie of means, the accused opened bill of value added tax to accuser. Accuser provided the kinescope video that buys a process, filmed content showed accuser enters the accused store, buy settle accounts of engaging the load of entrance red wine, the accused, accuser to pay, the accused opens bill, accuser to carry bought red wine to walk out of the accused shop to accuser, reach the whole process that gets on a car to check. Reach when showing accuser buys red wine to the accused in kinescope video red wine buys place to take out an examination after getting on a car, and bottle of every bottles of red wine 360 degrees rotate film, there all is stickup Chinese label in order to show on bottle. Kinescope shows, 6 bottles of red wine that accuser first time buys, department the accused is taken from inside ark is revealed inside inn, place of the accused of and rather than says from inside entire case place is taken. quadratic 6 bottles of red wine, department the accused makes case (6 bottles) sell, video (09 ″ of 1 ′ are in) indication casing bottom calls stickup Chinese label without the accused place. The red wine that the accuser in front courtyard careful produces experience record to the court 12 bottles tangible evidence, explain without Chinese label and Chinese. In the court decision of 4 become effective that the accused submits, city of Guangdong province Zhuhai is sweet court of continent division people, make (2017) another name for Guangdong Province 0402 civilian first 6920 civil judgments, found out accuser to sue many different defendant at the same time in this courtyard, and all be with what buying the product does not have Chinese to requirement the accused returns payment for goods for label and pay payment for goods decuple compensation, the evidential form that accuser submits in many cases agrees basically also, according to statistic amount of this batches of cases is in 50 above, of experience record label amount to 4 million yuan of above. Court of people of division of Doumen of city of Guangdong province Zhuhai (2016) another name for Guangdong Province 0403 civilian first 2701 civil judgments, (2016) another name for Guangdong Province 0403 civilian first court of intermediate people of city of Zhuhai of province of 2695 civil judgments, Guangdong (2017.
Court of first instance thinks: One of focuses of controversy of this case both sides depend on accuser whether belonging to consumer. According to " rights and interests of consumer of People's Republic of China protects a law " the 2nd regulation, consumer is opposite at the sale person the concept with generator. In wanting to trade in the market only, buy, use commodity or accepting a service is for need of individual, domesticity, is not to produce management activity to perhaps be bought for the purpose in order to seek profits, use commodity or those who accept a service, ought to maintain for " consume need for the life " consumer, belong to consumer rights and interests to protect the range that the law adjusts. Accuser produced red wine of whole experience table on the court, can prove accuser did not undertake edible, undertake several times buying, this case lawsuit mentions to the court later, before, mention in other court a certain number of removing that do not have case of Chinese label claim for compensation into lipstick wine, can maintaining accuser to buy end of experience table red wine in the accused place is to seek profits, reason accuser does not belong to consumer. The whether closes food safety level to not agree with to experience table red wine food of controversy focus. According to " law of safety of food of People's Republic of China " the 97th " of the entrance pack food, additive agent for food to ought to have Chinese ticket beforehand... . Pack food to do not have manual of Chinese label, Chinese beforehand or label, manual is not accorded with of a regulation, do not get an import. " . Experience table red wine belongs to an entrance to pack food beforehand, but without Chinese label, do not accord with the regulation of national mandatory standard, cannot make work in Chinese condition sale in domestic market, red wine of reason experience table belongs to the food that does not accord with food safety standard. Accuser asks to return payment for goods 20160 yuan, have fact and legal basis, give support, but at the same time accuser ought to return 12 bottles of bought red wine the accused.
The decuple to prosecutor position compensation of controversy focus should deny support. Basis " law of safety of food of People's Republic of China " the 148th regulation, accuser not quote proves to buy experience table red wine to be damaged, the accused is referred " customs declaration of custom import goods " , " enter a country goods examines quarantine proves " can prove department of experience table red wine to be imported from Italy, enter a country at protecting port through deep salt put together on June 10, 2017, examine through quarantine sectional certificate of proof, won't affect food safety. When accuser buys experience table red wine, had been clear that this red wine keeps abreast of without Chinese label an instant kinescope, and after buying not edible, accuser knows perfectly well experience case to red wine does not have Chinese label and be bought. Accordingly, the illegal behavior that experience table red wine does not have Chinese label also won't cause misdirect to accuser thereby its violate prevail on oneself true meaning does business. This case is accorded with " law of safety of food of People's Republic of China " the condition that place of the 148th the 2nd proviso sets, accuser appeal pays this to buy payment for goods decuple compensation 201600 yuan, do not grant to support.
Court decision of court of first instance:
One, division of dark blue of the accused plum is much better and wholesale the supermarket rises at adjudicating the day of become effective originally 10 return payment for goods of the reductive Fu Kun that accuse Han in a few days 20160 yuan.
2, accuser Han Fu Kun has the red wine of 10 12 bottles of SALVALAI that are in its the accused place to buy in a few days at adjudicating the day of become effective originally (every bottles of unit price 1680 yuan) return return the accused, if fail to return, in pressing relevant unit price to should return returned payment for goods in the accused in adjudicating the first originally, give deduct.
3, the other suit request that rejects accuser Han Fu Kun.
After first instance is adjudged, appellant Han Fu Kun refuses to obey, mention to this academy appeal.
Appellant refuses to obey first trial court decision, mention to this academy appeal says, one, court of first instance maintained this table red wine to belong to the food that does not accord with food safety standard, do not have quality problem with this table red wine again and did not cause damage, the litigant request that rejects appellant is undeserved; 2, " top people court about trying statute of comfortable use of case of food drug issue the regulation of a certain number of problems " the 3rd " produce issue because of problem of quality of food, medicines and chemical reagents, purchaser holds the right to the generator, person that sell, the generator, person that sell knows perfectly well problem of quality of existence of food, medicines and chemical reagents to still be bought with purchaser for those who undertake counterplea, people court does not grant to support. " the person that appellee serves as a sale, knowing perfectly well the product that its sell is not to accord with the food of food safety standard to still undertake selling, appellant has authority to ask as purchaser its according to commodity money paid for something purchased or received for something sold decuple pay compensation.
Appellee argue says, appellant is not consumer, it is a purpose with gain however, it is the person that the profession that goes up in the meaning now makes a holiday. Cognizance fact of court of first instance is clear, applicable law is correct. The request maintains original judgement.
This academy is found out via cognizance, cognizance fact of court of first instance is clear, evidential authentic, this academy gives affirm.
This academy thinks, " law of safety of food of People's Republic of China " the 25th, 26, 67 set with 97, food safety standard is the standard that implements compulsively, one of serious content that the label that safe to the food such as wholesome, nutrition requirement concerns is food safety standard, the bag mount that packs food beforehand ought to have ticket, label ought to indicate the manufacturing date of the product, composition or burden watch, expiration period, store the content such as the means of name address connection of condition, generator and manufacturing license number, of the entrance pack food to ought to have Chinese ticket beforehand, label ought to accord with the food safety standard of our country, chinese label does not accord with a regulation, prohibit importing. Afore-mentioned regulations make clear, the red wine of the entrance go up each bottles to ought to be stuck have Chinese ticket, the concentration that the content of Chinese label is food security information is reflected, without Chinese label, prohibit importing. 12 bottles of red wine all do not have this case Chinese label, make clear: One, antecedents is frame-up; 2, the food safety message with the basiccest lack, for insecure food. One adjudgement is maintained to this definitely correct, should grant to affirm.
About this case appellant the problem that is consumer.
Consumptive cent is the consumption of the consumption that produces a material and means of subsistence, only the consumption of means of subsistence just is " consumer rights and interests protects a law " protects consumption. Accordingly, judging a natural person is consumer not be the subjective condition with him is a standard, and should be a standard with the property of bought goods, the goods that wants him to buy only is means of subsistence, he is the consumer that disappear law indicates. " consumer rights and interests protects a law " the 2nd " consumer needs to buy for life consumption, use commodity perhaps accepts a service, its rights and interests gets this law protection; This law did not make a provision, suffer other concerned law, code to protect " not be to give consumer to give a definition, the adjustment that makes clear this law however limits. This is OK from " rights and interests of consumer of People's Republic of China protects a law " the 62nd gets confirm, this regulation " the farmer is bought, use the manufacturing data that is used at agricultural production directly, consult this law is carried out. " what this case appellant buys is means of subsistence, it is consumer consequently.
The person that make a holiday about the profession is the problem of consumer.
When all consumer arousal, become the potential person that make a holiday, so the conduct that makes false, carry out holiday also lost the market. Did not have make conduct of false, carry out holiday, the phenomenon that make a holiday disappeared naturally. The end that hits a holiday is possible to gain profit, anybody lawsuit is for the interest, everybody is dinkum go to what the court will meet with to experience proceeding, civil suit is such, administrative lawsuit, criminal lawsuit also is such, cannot the purpose because of party is to gain profit, the court rejects the litigant request of suitor. Interest component is legal interest and illegal profit, what the court protects is legal interest, negative is illegal profit. Those who make false, carry out holiday get is illegal profit, hitting what the holiday gets is legal interest, to get lawful benefit, give no cause for more criticism. The interest that asks forensic support makes false, carry out holiday makes false profit in the negative, be with the person that make false, carry out holiday the accent of a footing. The person that the some people muzzle alignment law makes a holiday, the person that do sell one's own things to make a holiday is painful, the issue with the sharp person that make false, carry out holiday, deviate from the basiccest people volition, because everybody is consumer, " consumer rights and interests protects a law " the volition that is people. Hit a holiday to also need major, if make a holiday for many times person the word that can define the person that make a holiday for the profession, so the pioneer that the person that the profession makes a holiday is consumer, suffer naturally " consumer rights and interests protects a law " protection.
About this case appellant it is an insider, its appeal should deny the problem that gets supportive.
" statute of comfortable use of case of issue of drug of food of cognizance of management of top people court the regulation of a certain number of problems " had given out the 3rd times to this clear answer " produce issue because of problem of quality of food, medicines and chemical reagents, purchaser holds the right to the generator, person that sell, the generator, person that sell knows perfectly well problem of quality of existence of food, medicines and chemical reagents with purchaser and still buy for undertake counterplea, people court does not grant to support. " this firstly; Secondly, if forbid the consumer of know the inside story to make a holiday, can create such result: Unwitting consumer makes a holiday impossibly, and the consumer of know the inside story forbids to make a holiday again, it is OK to make false conduct of false carry out hall and of emperor was popular, if this is planted,absurd notion can hold water, so " consumer rights and interests protects a law " legislative tenet is OK instead makes the amulet of holiday of false carry out.
Do not have about this case appellant drinkable this table red wine, did not cause person to damage, whether the issue that holds castigatory sex compensation.
This academy thinks, " top people court about trying statute of comfortable use of case of food drug issue the regulation of a certain number of problems " the 15th " the food that production does not accord with safe level perhaps is sold knowing perfectly well is the food that does not accord with safe level, consumer eliminates seek redress loss outside, to the generator, person that sell the view pays money paid for something purchased or received for something sold decuple compensation or of the seek redress of other compensation standard that according to law sets, people court should grant to support. " the castigatory sex compensation that shows money paid for something purchased or received for something sold is decuple is not killed with consumer person rights and interests by damage for premise, if person rights and interests sufferred consumer to damage, consumer still can accentuate view loss compensation of sex of 3 times penalty.
Because do not have stickup label to ought to be decided,be the problem of insecure food merely about this table red wine, the entrance that does not have Chinese label already was narrated to pack food beforehand above, it is to cannot be connected close, appellant place refers " customs declaration of custom import goods " , " enter a country goods examines quarantine proves " indemonstrable this table red wine is inside this batch, antecedents of this table red wine is consequently frame-up; Law stipulates the food that does not accord with food safety standard is insecure food, the court ought to follow legal regulation, cannot divide again to according with the security of the food of food safety standard 369 etc.
But, this case money paid for something purchased or received for something sold of 12 bottles of red wine adds up to 20160 yuan, compensation of decuple penalty sex is 201600 yuan, for the appellee of this individual to regarding as operator, not be a small amount, in nowadays civilian battalion economy manages difficult environment, especially such, consequently this academy master piece mediates the job during 2 careful, force closes to appellant reduces number of claim for compensation, appellant agrees finally to be reduced retreat one compensate 4, but appellee does not grant to respond to tardy, cause this academy to mediate working failure.
On put together, first trial cognizance fact is clear, applicable law is undeserved, this academy should grant lawfully change the original sentence, according to " code of civil law of People's Republic of China " the 170th the first (2) regulation, the court decision is as follows:
One, keep court of people of Li Cang division (2018) rash 0213 civilian first 3860 civil judgments the first, 2, cancel should adjudicate the 3rd;
2, division of appellee Li Cang is much better and wholesale the supermarket removes indrawn appellant Han Fukun 10 days to pay compensation 201600 yuan at adjudicating the day of become effective originally;
3, first instance case accepts fee 4626 yuan, halve collection 2313 yuan, 2 careful case accepts fee 4626 yuan, add up to 6939 yuan, by appellee much better and wholesale supermarket assumes Li Cang area.
This court decision is final judgment to adjudicate.
Try long Sun Zhiyuan
Judge Yu Ruijun
Judge You Zhichun
Two years on March 6
Red of dawn of judge assistant king
Clerk Xiao Renan
Clerk Hou Xiaofan
