A counterfeiter may not "make profits"
In recent years, the negative social impact of "professional counterfeiting" has become increasingly prominent, which has aroused great concern from all walks of life. The State Administration for Industry and Commerce pointed out in the drafting notes of the Implementation Regulations of the Law on the Protection of Consumer Rights and Interests in People's Republic of China (PRC) (Draft for Review) that from a legal point of view, the subjective purpose of "professional counterfeiters" is to make profits through high claims, which does not belong to daily consumption and does not constitute misleading, and punitive damages for fraud in the Consumer Law should not be applied. In practice, "professional anti-counterfeiting" is mostly aimed at irregular phenomena such as advertising terms and labels, and has little effect on really cracking down on fake and shoddy goods and fraud by operators. In addition, the rapid expansion and spread of "professional counterfeiters" has greatly wasted public resources such as administration and justice, disrupted the market order, and it is necessary to curb it in time.
In August this year, the draft "Regulations on the Implementation of the Consumer Protection Law" was issued, clarifying that "professional counterfeiters" are not protected by the Consumer Protection Law. The explanation of the draft of the manuscript suggests that after the "Regulations" were publicly solicited for opinions, the second article caused great repercussions and different understandings, but the opinions in favor were increasing. On the basis of extensively studying the opinions of all parties, the Regulations have absorbed the opinions of the Development and Reform Commission, and have been revised as "for the purpose of making profits", so as to express the legislative intention more accurately and implement the spirit of the Consumer Law of the superior law. For this reason, Article 2 of the draft for review responds to social concerns at the legislative level for the first time, and clarifies that these regulations do not apply to those who purchase or use goods or receive services for profit.
Telemarketing is not allowed without the consent of consumers.
The draft for review also stipulates that operators should establish and improve information confidentiality and management systems, and may not provide consumers' personal information to others without consumers' consent, and may not send commercial electronic information or make commercial sales calls to consumers' fixed telephones, mobile phones and other communication devices, computers and other electronic terminals or electronic information spaces such as e-mail boxes and network hard disks.
The draft clarifies that the personal information of consumers includes name, gender, occupation, date of birth, ID number, address, contact information, income and property status, health status and consumption status. Business operators must clearly state the purpose, manner and scope of collecting and using information and obtain the consent of consumers, and may not collect information irrelevant to business operations or collect information by improper means.
Where a consumer explicitly requests a business operator to delete or modify his personal information, the business operator shall delete or modify it according to the consumer's request, unless otherwise stipulated by laws and regulations. In case of information leakage or loss, the business operator shall take remedial measures and notify the consumers in time. The certificate that the business operator has fulfilled the express obligation and obtained the consent of the consumer shall be kept for at least three years.
Expert interpretation
Suspected buying fakes can play a synergistic role.
Lawyer Qiu, director of the Consumer Protection Committee of Beijing Lawyers Association and director of Beijing Jiahui Law Firm, believes that the implementation regulations of the Consumer Protection Law do not restrict counterfeiters, and the original laws do not support for-profit buyers or counterfeiters. Only the second article of the implementation regulations emphasizes that people other than financial consumers are not protected by consumer law, which has two meanings: first, people other than financial consumers are not allowed to make profits; Second, financial consumers can make profits, which has actually broken through the scope of application of the original Consumer Law.
Qiu said that what is a professional counterfeiter should be defined by relevant departments, because ordinary consumers also have profit-making purposes when defending their rights. Qiu believes that the focus should be on the punishment of counterfeiting and selling fakes, rather than whether the buyer is a consumer, for profit, or for professional counterfeiting.
In addition, the so-called "professional counterfeiters" are mostly aimed at irregular phenomena such as advertising language and label identification, and have little effect on truly cracking down on counterfeit and shoddy goods and operator fraud. Qiu believes that it is the right of every citizen to complain, report and accuse illegal operators.
Professor Liu Junhai, director of the Institute of Commercial Law of Renmin University of China, said: "We should objectively and fairly understand the roles and functions of those who buy fakes. For the industrial and commercial administrative law enforcement departments, it can play a synergistic role and help promote social fairness and justice. "
Professor Liu Junhai believes that building a consumer-friendly society in an all-round way can not be separated from the punitive damages system, which has six social functions, such as severely punishing the faithless, fully compensating the victims, generously rewarding the defenders, effectively warning the whole industry, comprehensively educating the public and soothing the public's psychological feelings.
Why do professional counterfeiters "suddenly emerge"?
First of all, the legislature's expectation of the phenomenon of professional counterfeiters is insufficient, which makes the existing legal system leave a living space for professional counterfeiters. Before the revision of the new Law on the Protection of Consumer Rights and Interests, there was only a provision of "fake one loses one" for product quality problems, while the new consumer law added a provision of "fake one loses three" for punitive damages for some commodity product quality problems. Specific to the field of imported food, a can of ordinary imported infant milk powder costs two or three hundred yuan at a time. According to the punitive damages of the new law, professional counterfeiters buy a box of six cans of milk powder at a time. Once the "fraud" is successful, the benefits obtained by the counterfeiters may reach tens of thousands of yuan.
The original intention of this punitive compensation mechanism is to better protect consumers' interests and maintain market order, but as a result, professional counterfeiting has become a profitable industry, which is probably unexpected by legislators.
Secondly, the food safety law is too general in judging food quality. For many very small problems, as long as they do not meet the national standards, they are classified as unqualified, which makes the threshold of product "incrimination" too low. For example, in the national food safety standard of prepackaged foods, there are some specific requirements for the font height of labels, which are intended to ensure the readability of labels, safeguard consumers' right to know, and prevent illegal businesses from deliberately concealing food safety information and deceiving consumers. However, in reality, there are cases where counterfeiters make huge claims to enterprises with labels that differ from the standard by only a few tenths of a millimeter. For another example, the national food safety standards require that some main nutrients in nutrition labels in prepackaged foods should be marked in bold, while others are not. If enterprises ignore this point in the process of making labels, they will also be judged as unqualified food. In the eyes of professional counterfeiters, this innocuous product itself is unqualified, and this is precisely the "small plait" that is most easily caught. Finding such problems requires neither short skills nor complicated instruments and equipment, only mastering some national standards, and with patience and care, such problems can almost always be found, which greatly reduces the "entry threshold" for professional counterfeiters.
In addition, frequent changes in food safety standards and related policies have also made enterprises feel at a loss and made professional counterfeiters "take advantage of it". Take almonds and the names of almonds as examples. Both of them are almonds in English, and for a long time, the translation of "almond" is more common and has been accepted by most consumers. However, according to some new standards SB/T 10673-20 12 Kernel of Mature Almond, SB/T 10670-20 12 Nut and Seed Food and NY/T867-2004. This new problem caused by the change of standards is most likely to be targeted by professional counterfeiters.
Moreover, in recent years, with the continuous expansion of the influence of Internet information dissemination, once food safety issues are exposed, it may cause irreparable losses to the reputation of enterprises. Therefore, in order to minimize the pressure of public relations, many food enterprises are sometimes willing to "break the money and eliminate disasters" and settle with professional counterfeiters privately, which has improved the enthusiasm of professional counterfeiters to some extent.
What are the means of professional counterfeiters?
Professional counterfeiters are a group of people in the field of consumer goods who get economic benefits by "knowing fakes and buying fakes". Generally speaking, they are quite proficient in legal knowledge, familiar with administrative and judicial procedures, and good at using legal rules in the long-term "counterfeiting" process, forming a series of standardized and standardized "counterfeiting" models. Basically, it can be summarized as one purchase, two publicity, three reports, four reconsiderations, five lawsuits, civil first, administrative last, walking on two legs and exerting pressure in many ways.
Once purchased, first look for imported food that may have quality problems in the market, usually with wrong labels, and then buy a considerable amount directly to ensure that once the claim is successful, you can get rich returns. Publicity refers to the application of administrative organs to disclose government information and solidify evidence. Generally speaking, many imported foods will issue inspection certificates when they pass the inspection of imported commodities, and some foods need to be labeled for the record. By disclosing this information, counterfeiters can fix a series of evidences such as business units (responsible subjects), import and export procedures, especially product labels, so as to facilitate subsequent claims. Third, report, if the product labels bought by counterfeiters are inconsistent with the records of the regulatory authorities, it proves that the merchants have tampered with the labels or affixed unqualified labels. At this time, the counterfeiters will complain to the food supervision department, demanding that the products involved be investigated and punished, and demanding rewards. However, if the labels of the purchased products are consistent with the records, it means that the enterprise did not practise fraud in the import process, and the labels were recognized by the inspection and quarantine department after inspection. At this time, the counterfeiters can ask the inspection and quarantine department to change the inspection conclusion according to the laws, regulations and mandatory standards related to food safety that they have. This link is also the most controversial, which will be introduced in detail later in this article. 4. Reconsideration. If the counterfeiter fails to achieve his goal through complaint, for example, the administrative organ thinks that the reported person is not suspected of breaking the law after investigation, or does not recognize the basis put forward by the counterfeiter, the counterfeiter will often request the higher administrative organ for reconsideration through administrative reconsideration. Reconsideration has several advantages for counterfeiters. One is to further exert pressure on the administrative organs, expand their influence, and at the same time may overturn the conclusions of the lower administrative organs. The second is to clarify the subject of litigation and pave the way for the fifth step of administrative litigation.
Verb (verb's abbreviation) litigation: If the administrative reconsideration fails to confirm the quality problem of the complained product, the counterfeiter will sometimes bring an administrative lawsuit to the people's court for various reasons, such as illegal procedures and unclear facts, and ask the court to make a judgment on the specific administrative act.
In the above five steps, counterfeiters also adhere to the principle of civil affairs first, then administration, and walk on two legs in order to obtain the greatest benefits. Civil before administrative means that after purchasing the so-called "problem" products, counterfeiters will first come up with relevant laws, regulations, mandatory standards and other basis, contact the business unit to claim compensation, and then run through the five steps of "counterfeiting" to maintain communication channels with the defendant. Once the respondent is "mainly" and willing to pay compensation and settlement, the complaint, reconsideration or lawsuit will be withdrawn. If the respondent is always unwilling to settle, the counterfeiters will continue to "find trouble" for the administrative organs through complaints, administrative reconsideration or even administrative litigation, and indirectly put pressure on the complained enterprises. But no matter how the means change, in the final analysis, the word "profit" comes first, which is also the most essential difference between professional counterfeiters and ordinary consumers.