Know the claim for compensation after the holiday buys a holiday, its appeal to beg should deny get supportive, whether does the view punish sexual compensation? From false claim for compensation is hit to stir more than 20 years ago up to now, theoretic controversy and judicatory carry out medium difference, as one falls never has had stopped --
Sea of king of the well-known public figure that make a holiday says, "Make a holiday " it is patriotic, "The holiday is hit " it is illegal crime. Photograph into hill
26 years of 3 field controversies between
Picture origin network
Picture origin network
Now is a when beginning of spring makes a holiday cold winter, shanghai, Xi'an has a profession to hit dummy to be caught recently, some has been sued to come court, also some by innocent release. Proposal everybody calls false colleague, must comply with just when the principle act of gender, necessity, rationality, lawful sex.
Must comply with just when the principle act of gender, necessity, rationality, lawful sex..
On April 29, on the 5th when hold in Beijing 315 forum that make a holiday, sea of king of the well-known public figure that make a holiday, hit dummy to represent the first speech as the profession. On first before 5 years 315 forum that make a holiday, speech title of Wang Hai is, "My Chinese dream -- 6 expectation to law of perfect pass the time in a leisurely way " . That year, law of new pass the time in a leisurely way and courtyard of top person civil code " about trying statute of comfortable use of case of food drug issue the regulation of a certain number of problems " apply, the castigatory sex compensation of con consumer is carried to " retreat one compensate 3 " , clear support " purchaser " the holiday knows to buy a holiday in domain of food medicines and chemical reagents... 5 years, the profession hits a holiday to turn to trough from the height, of Wang Hai ponder over more also ground by exterior turn to oneself.
"From false claim for compensation is hit to stir more than 20 years ago up to now, about knowing a holiday to buy the holiday should get law supports, theoretic controversy and judicatory carry out medium difference, as one falls had not stopped, " land of chairman of seminar of law of protection of rights and interests of consumer of Chinese law society says, "Appear, now ought to be the 3rd controversy. Now ought to be the 3rd controversy..
On December 31, 1993, the castigatory sex compensation of our country protects the horizontal stroke in the law to be born for nothing in consumer rights and interests. This law sets the 49th times, "Operator provider is tasted or the service has fraudulent action, ought to raise compensation according to the requirement of consumer its get loss, the cost that raises compensatory amount to buy goods for consumer perhaps accepts one times what serve expense. " this one regulation, developed the compensatory principle of civil code general rule, also be initiate of country of mainland law faculty.
After disappear law carries out a year many, the 49th consumer that call appeared.
In March 1995, groups of Qingdao of 22 years old is small Wang Hai was in Beijing Longfu edifice to buy a pair " Suo Ni " after earphone discovers a holiday, buy 10 pairs of false earphone to ask to be compensated for doubly again, and claim for compensation is successful. Chinese consumer newspaper takes this typical case, the disappear in combination assist hold " check fraudulent action, fulfil double compensation " informal discussion. "On the meeting, began to buy false argument to knowing a holiday namely. " introduce according to land, antagonistic sound basically has: "Wang Hai buys false claim for compensation, those who hit is state-operated warehouse, it is to dig socialistic foundation " " Wang Hai relies on to buy hairpiece ill-gotten wealth, harm others to benefit oneself, devoid morality " " knowing a holiday to buy a holiday is to earn money, not be consumer, cannot let them get be compensatoried doubly " " what the shop does not know to sell is fake, not subjective those who go up is intended, do not form con " .
"This is the first controversy, what have academic point of view already is different, what also have certain learned man is confused, have the make trouble of the person that make holiday of false carry out more, still have the support of local protectionism, their across is promiscuous together, make originally simple thing becomes complicated and confusing. " land says.
In argumentative sound, of Wang Hai know a holiday to buy a holiday to also encounter obstacle. If where at issue implement disappear law the 49th, land thinks, best method gets one paper of the court to adjudicate namely.
The 2nd controversy only then buy a holiday to appeal to personally in Beijing at land to the court, and claim for compensation is successful. "I spend 2900 yuan of paintings that bought two sham Xu Beihong in some commercial firm, tell agency to Beijing on the west court of the city zone. In August 1996, the court adjudicates agency returns the money that buy a painting, increase compensatory accuser to buy one times what draw a money, add up to 5800 yuan. " this is China first knowing the holiday buys a holiday, capture fake and the civil punish book of become effective, cause tremendous echo socially, ceaseless emerge in large numbers gives each district the profession hits dummy.
Think this one court decision that had a court can solve a problem originally, but our country is not home of legal precedent France, town court of justice can be sentenced on the west win, town court of justice also can be sentenced east be defeated. The profession hits a holiday to enter trough gradually inside a few years subsequently.
2013 the end of the year, top magic art " about trying statute of comfortable use of case of food drug issue the regulation of a certain number of problems " apply, its set the 3rd times: "Because food, medicines and chemical reagents pledges capacity question produces issue, 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. People court does not grant to support..
Look in land, this is a marvelous judicatory explanation, its blow the bugle of false provision of cleanse false drug, know flush like the false blowout that buy a holiday, cold ice changes aspic, the profession hit a holiday to greet spring.
Genesis of the 3rd controversy 2016 the end of the year.
In October 2016, the country is industrial and commercial total bureau drafts " law of protection of consumer rights and interests carries out byelaw " (send go over a manuscript or draft) the 2nd regulation: "Consumer needs to buy for unripe vivid consumption, use commodity perhaps accepts a service, its rights and interests gets this byelaw protection. But natural person, legal person is other perhaps the organization is bought for the purpose with seeking profit, use commodity or accept a service, not applicable this byelaw. Not applicable this byelaw..
After this byelaw just asks for opinion draft to announce each to the society, cause very big echo. Subsequently, top law general office is in the country is industrial and commercial say in the answer opinion of total bureau: "The characteristic that considers issue of the safety that feed medicine and existing judicatory explanation and the particular case that judicatory carries out, we think to be able to consider to be in at present except buy the case besides food, medicines and chemical reagents, restrict what the profession hits dummy to seek profit stage by stage the gender makes false conduct. Restrict what the profession hits dummy to seek profit stage by stage the gender makes false conduct..
"Many local exert oneself implement this one spirit, denying a profession to hit dummy is consumer, reject them appeal to beg, some employs criminal artifice even, with blackmail blame punish profession hits dummy. " land says.
Two court decisions respond to controversy focus
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In January 2018, in March 2019, qingdao town intermediate court of justice makes two civil court decisions, the commodity that is aimed at operator sale not to accord with food safety standard to the person that the profession makes a holiday advocates decuple compensation gives support. It is especially in the court decision that one case makes issue of product of much to appellant Han Fu Kun and appellee good and wholesale supermarket, the judge is bold touch a few focuses of long-term argument in knowing a holiday to make a holiday, answer doubt dispels doubts.
In July 2018, han Fukun is in many good and wholesale supermarket of Qingdao city to buy red wine of 12 bottles of entrances early or late, discover all label of not stickup Chinese, the red wine that knows perfectly well a sale with much happiness then does not accord with standard of safety of our country food, enroach on appeal to the supermarket for the legitimate rights and interests of accuser to the court. Court of first instance is maintained, the end that accuser Han Fu Kun buys red wine is to seek profits, do not belong to consumer, accuser knows perfectly well experience table red wine not to have Chinese label, the true meaning that won't cause misdirect to violate his to its consequently does business, reject accuser Han Fu Kun to ask the lawsuit of decuple compensation requests.
Han Fukun refuses to obey first instance court decision, appeal reachs Qingdao city intermediate court. Qingdao quadrangle supported Han Fukun finally to ask of decuple penalty compensation appeal to beg. In the judgment of this case, the judge bought the problem of vexed all the time a few focuses in false case cognizance to do detailed illuminate to knowing a holiday --
The person that make a holiday about the profession is the problem of consumer. This academy thinks, judge the standard of consumer, not be the subjective condition with buying principal part, it is a standard with the property of the content of mark however, the goods that wants him to buy only is means of subsistence, he is the consumer that disappear law indicates; Consumer hits a holiday to be able to transform how many times the person that make a holiday for the profession, give out hard such standard; The person make a holiday with legal successful provision has authority to advocate castigatory sex is compensated for, show law supports dozen of holiday, making a holiday is meddlesome, hit a holiday 10 times to become bad thing impossibly... the end that hits a holiday may be to gain profit, anybody lawsuit is for the interest, 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 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.
Buy a holiday about knowing a holiday, its lawsuit requests to should deny the problem that gets supportive, top magic art " about trying statute of comfortable use of case of food drug issue the regulation of a certain number of problems " already gave out the 3rd times to this clear answer, 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, make holiday of false carry out action is possible hall and of emperor be popular.
About causing person to harm, whether the issue that holds castigatory sex compensation, this academy thinks, " about trying statute of comfortable use of case of food drug issue the regulation of a certain number of problems " the 15th regulation: "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 damaged with consumer person rights and interests for premise, if person rights and interests sufferred consumer to damage, consumer still can accentuate view loss compensation of sex of 3 times penalty.
And another profit that Qingdao quadrangle makes group the report of one case points out business mansion and dispute of product liability of appellee Dong Xiulin clearly: "Appellant sells insecure food, endanger public health, its do not meditate oneself, criticise appellee is a purpose with seeking profits instead, to this view, this academy does not grant to support. Appellee mentions although this case lawsuit is a purpose in order to seek profits, but its behavior is had at the same time safeguard a society public interest, purify the action of the market, legal provision pays money paid for something purchased or received for something sold decuple compensation is the praise and honor to this kind of behavior. Be about to want those who put an end to appellee to seek profits, the method with best appellant does not sell insecure food namely. The method with best appellant does not sell insecure food namely..
These two court decisions of Qingdao quadrangle, be hit by the profession dummy is regarded is the spring thunder in severe winter, be " the earthshaking an official call to arms that make a holiday " , and mention to already made the report with red net, of these two cases advocate careful judge Sun Zhiyuan says, "I am according to law only, said a few truth " .
Hit a holiday to need people war
Picture origin network
Come for years, social all circles makes a holiday to the profession volt rises and fall since the view, controversy is ceaseless, how does crucial question still know consumer rights and interests to protect law and food safety law about punishing a gender indemnity clause reachs his to be applied mediumly in practice.
On the 5th of April 29 315 forum that make a holiday, a few once tried consumer dimension all the year round of authority case hold judge of course of study hit the argumentative central issue that the holiday involves to put forward his to the profession from legal principle and practice level think and suggest.
"If say the market can raise those who give major to hit dummy, call false company even, explaining make carry out fake situation is very serious, the legislative original intention of disappear law should start people war namely, hit a holiday to want to have Guan Jun not only, also want to have commando, only Guan Min is combined, collective blow, ability builds the socialist market economy that fair, sincere letter, law changes. " Su Chi of former dean of court of Beijing intellectual property says.
"Long-term since, each service develops activity of dozen of false special processing for many times, although obtain certain result, but from look on the whole, fake runs rampant and did not get effective keep within limits. At present things of food medicines and chemical reagents, infant, old people, the net is bought build a holiday to still be highlighted, the country has become the distribution centre of fake. Because existing law is right punishment of the person that make holiday of false carry out is too light, together with lacks the administrative regulations of form a complete set, explanation of relevant civil administration of justice is challenged, cannot form the assorted fist that makes a holiday.
Show according to the data, 2018, alibaba to execute the law mechanism pushs those who send more than 50 thousand yuan to remove punishment to nod to get case clue 1634 cases, assist police to capture guilty suspect 1953 people, experience record amount 7.9 billion yuan. And the data statistic that supervises total bureau according to the market, 2018 first half of the year, the whole nation investigates electric business to violate a case 275 cases in all, move send a judiciary 11 cases. Two groups of figures are comparative, can see, the situation that make a holiday is grim, but the force that make a holiday is very weak however, and the profession that serves as the fresh troops that make a holiday hits dummy, their position often is oppugned however, this kind of state goes against fake of keep within limits spread. " top people standard Zhang Jin of former presiding judge of one front courtyard says courtyard civilian first.
Beijing first trial of the 2nd intermediate court appoint Wang Fanwu of conference committee member thinks, disappear law carries out more than 20 years, the problem of rights and interests of enroach on consumer still did not get be controllinged effectively, a main reason was not accomplished namely bring all positive factors into play to form " people war " situation condition.
Put forward in the light of a few scholars " the profession hits dummy " the point of view that makes a holiday do not accord with honest credence principle for economic interest, wang Fanwu points out, the behavior of interest of enroach on consumer and profession make a holiday is different property, the problem of different level. One is lawbreaking mandatory standard, the social conduct of con consumer, drug, health that destroys person of social order, harm and life safety problem; One is not lawbreaking mandatory standard, just used legal system, hit a holiday to earn money again already. Look with the eye of gentleman, it is a purpose at most not quite dinkum. Change an angle to see this problem -- is those who make dummy discovery false? Law sets 3 times, is decuple compensate pays one encourages consumer to hit false, license to acquire the system of economic interest through making a holiday? If be, how can you reach again disobey the conclusion of honest credence principle? Face at present nowhere is not in the society the behavior of the interest of enroach on consumer of detest making a person, the profession hits dummy to there is certain deterrence to illegal operator inside certain level and certain limits, also can rise to supervise and urge to administration mechanism action. While they get economic benefit, go up objectively the interest of average to safeguarding consumer also has active sense. Think to go after economic interest to hit a holiday to violate honest credence principle namely, this from theoretic go up to be worth deliberate with social effect.
"Each district calls measure of the judicatory when false case in cognizance profession skimble-scamble, with the law state have particular concern. " Wang Fanwu points out, active disappear law different meanings of the 2nd very easy generation, the proposal uses a division, state for: "The end that manages for production is bought, of use commodity or service, do not suffer this law to adjust " . In addition, when revising the relevant law that upholds consumer rights and interests, operator should involve in will pertinent clause " know perfectly well " 2 words are deleted. Whether does because be in,operator of essential and faint proof know perfectly well the consumer in consuming dispute case, whether is the judge known perfectly well in judgement operator it is difficult to go up to also have. Accordingly, the consumptive dispute case of applicable disappear law wants the character according to the case, the decision criteria that whether knows perfectly well to operator wants to reduce: Want the competence that operator has management merchandise or serves only, should illative the each respect knowledge that its understand manages commodity or service completely, responsibility and obligation. At this moment the condition of operator is " know perfectly well " , need not prove. The law that upholds consumer rights and interests is special law, emphasize protecting consumer only -- the legitimate rights and interests of absolutely weak, the responsibility of strict operator, aggravating his obligation is the requirement that assures consumer rights and interests. Should not give operator " do not know perfectly well " excuse shirk responsibility. The goods that operator sells, offerred service should have a holiday only, have blemish or flaw, tell customer without beforehand again, should be being maintained is know perfectly well and do it intentionally, form con.
The profession hits a holiday to also need to make a holiday
Picture origin network
Show according to relevant data, in recent years, the profession hits the team of dummy to expand ceaselessly, by former " single-handed " " an isolated force fights bravely " move toward increasingly specialization, the group is changed, the basic measure that their thought fors the time being is buy, 2 talk, 3 complain inform against, 4 reconsider, 5 lawsuit, apply with all possible means pressure, to industrial and commercial, market superintendency branch and judiciary execute the law judicatory ability brings very big challenge. According to the data that couplet dealer network releases, come from 2014 2017, the profession that countrywide court tries hits dummy case to go to 2777 from 94 increase sharply. Be in a few places, appeared to hit dummy to be in to same question by different profession sometime paragraph, relapse inside some area the case that appeal informs against, some people design covers a region, do not return money through refund, pass blackmail obtain increase even, these behavior bring very big worry to the job of the executive authority, also affecting normal market order on certain level.
"Hit a holiday to want to accomplish firm, accurate, firm, take in order to hit for the purpose, be complained meaninglessly and the ado that lawsuit is regular to executive authority, judiciary job, cannot break through legal bottom line more, do the thing with negative ego. In the society in development, proper,can exist really sometimes reasonable and necessary illegimate however thing, but we should become the builder that is in a developing country, is not Hun. " Wang Hai reminds a profession to hit dummy, must share clear " make a holiday " and " the holiday is hit " , con to adopting stealthily substitute one thing for another, use the one who brings disgrace on his group that controls the method blackmail such as insurance cost even, want active exposure to inform against, cannot let " the holiday is hit " bring shame on " make a holiday " .
Wu Gaohan of former deputy secretary-general puts forward Chinese consumer society, hit the processing of false case to the profession, want to distinguish particular case, cannot do one knife to cut. After the false to those knowing claim for compensation that buy a holiday, insist to inform against, and supervise the person that the executive authority investigates dozen of holiday of illegal businessman thoroughly, should support energetically lawfully, and set premium give incentive, because they maintained individual interest not just, also maintained the interest of other customer, cooperate with again service upheld market order; Hit dummy at knowing what the holiday buys false claim for compensation to stopping merely, also should give lawfully support; And buy false blackmail through knowing a holiday to those, mix even illegal element is collective and con of consumer " the holiday is hit " , want to be hit stoutly lawfully.
"Distinguish these cases, it is right administration executes the law the branch executes the law the test of wisdom. " Wugaohan says.
