Consumer public interest litigation has reached a new level.

Not long ago, the Guangzhou Intermediate People's Court made a first-instance judgment on "three public interest lawsuits for manufacturing and selling punitive damages in fake salt" filed by the Guangdong Consumer Council (hereinafter referred to as "Guangdong Consumer Council"), and the Guangdong Consumer Council won the case, and eight defendants in the three cases had to pay punitive damages of 167480 yuan. This is also the first time that the court supported the punitive damages public interest litigation organized by the Consumers Association after the revision of the Consumer Law.

The success of this case has made people see more possibilities for consumers' associations to exercise public interest litigation rights. However, consumer associations and many legal experts have also found that there are still many problems to be clarified in the process of bringing punitive damages public interest litigation.

Does the Consumers Association have the right to file a compensation public interest lawsuit?

On October 26th, 2065438+07/KLOC-0, Guangdong Consumer Council filed four public interest lawsuits with Guangzhou Intermediate People's Court on the grounds of trafficking in fake salt. The Consumer Council of Guangdong Province believes that fake salt was illegally sold by Peng Mousheng and others, which caused the salt products that did not meet the food safety standards to finally flow into the market, infringing on the health of the unspecified majority of consumers and infringing on the health and safety rights of consumers, with a bad nature.

At present, three of these cases have been formally pronounced on April 24 this year, and the claims for punitive damages, apologies and other lawsuits put forward by the Guangdong Consumer Council have been supported. The fourth case will be heard on May 28th.

The victory of Guangdong Consumer Council has given a shot in the arm to the protection of consumers' rights and interests, and also aroused the concern of the society about punitive damages public interest litigation.

In the past, in consumer public interest litigation, consumers' associations all asked enterprises to stop some behaviors that violated consumers' rights and interests. Why did they file a compensatory public interest lawsuit this time?

Yang Shuna, secretary general of Guangdong Consumer Council, believes that punitive damages public interest litigation is more in line with the original intention and requirements of the establishment of public interest litigation system, and economic compensation is the "best weapon".

The Consumer Council of Guangdong Province found in its daily work that many consumers are unlikely to file compensation lawsuits in cases involving food. "Consumers can't even know whether they have been infringed or not, and there is no way to obtain evidence." Yang Shuna pointed out that most consumers do not keep evidence when buying a pack of salt and a piece of pork. Therefore, it is almost impossible to expect consumers to file such a lawsuit. In this case, it is very necessary and feasible for the Consumers Association to file a lawsuit.

Su, a professor at the Law School of the University of International Business and Economics, said that consumers are a vulnerable group. "The relief for consumers should be developed from individual relief to collective relief." That is to say, without knowing how many consumers' rights and interests have been damaged, let a representative file a compensation public interest lawsuit on behalf of these unspecified consumers.

In fact, this is not the first punitive damages public interest litigation case prosecuted by Guangdong Consumer Council.

Last year, the Consumer Council of Guangdong Province filed a consumer civil public interest lawsuit with the Shenzhen Intermediate People's Court on the case of Li Mouhua, Cai and others producing and selling sick and dead pork, requesting the court to order the criminal suspects (***20 people) suspected of producing and selling food that did not meet the food safety standards to bear punitive damages of RMB 10062000, publicly apologize in the news media at or above the provincial level, and bear the legal costs.

However, the application was not fully supported by the court. In the trial, Shenzhen Intermediate People's Court held that Article 13 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Consumer Civil Public Interest Litigation Cases did not clearly stipulate that punitive damages could be applied, so it made a judgment of 20 17 12 19, supporting the Guangdong Consumer Council's suggestion of making an apology, and 20 defendants were responsible for 500 yuan's sum of money.

20 13 The new Consumer Law gives consumer organizations at or above the provincial level the right to file public interest litigation, but the right of consumer associations to file punitive damages public interest litigation has not been clearly stipulated or denied by law. The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Consumer Civil Public Interest Litigation cases, which was highlighted on 20 16, did not mention punitive damages public interest litigation. Does this mean that consumer associations are not qualified to file punitive damages public interest litigation?

Yang Shuna said that it is precisely because the law does not clearly stipulate that in the case of sick and dead pork, the court believes that the basis for the Consumers Association to file punitive damages is insufficient. "China's laws and regulations on public interest litigation are relatively few, and the regulations are relatively general. Therefore, how to file, fight and judge compensation public interest litigation is indeed a great difficulty. "

According to Zhou Hong, deputy procurator-general of Guangzhou People's Procuratorate, punitive damages public interest litigation is mainly applicable to cases where it is difficult to find specific consumers and personal losses are small. "Because of this small scattered infringement, the degree of infringement is small, the cost is high, it is difficult to obtain evidence, and the rights defenders are scattered. It is difficult to file a lawsuit without specific consumers. "

On the one hand, punitive damages public interest litigation can protect the legitimate rights and interests of many consumers, on the other hand, it can impose severe economic sanctions on infringers, thus effectively curbing and preventing consumer infringement.

Compensation calculation can start from the sales side.

How to confirm the amount of punitive damages for public interest litigation filed by consumer associations?

The current laws and regulations do not clearly stipulate the amount of compensation for punitive public interest litigation. Article 148 of the Food Safety Law stipulates that consumers can demand compensation of ten times the price or three times the loss from the producers and operators if they produce food that does not meet the food safety standards or operate food that they know does not meet the food safety standards.

Because public interest litigation involves many unspecified consumers, the prices of goods purchased by consumers may be different. For food such as salt and pork, it is difficult to keep invoices when purchasing. Isabella Chow believes that public interest litigation is worthless if it is calculated at ten times the price paid by consumers when they buy goods, but it is a specific litigation based on consumers' losses, not a public interest litigation. In Zhou Hong's view, it is easier to obtain evidence by calculating the sales of enterprises from the sales side.

When Guangdong Consumers Association filed a lawsuit, according to the provisions of the Food Safety Law, the infringer was required to pay ten times the sales price as compensation.

However, some experts pointed out that there are many middlemen in the product sales process. If the infringer is a manufacturer, the consumer's payment price must be higher than the infringer's sales price, so it is unfair to consumers to calculate the compensation amount according to the infringer's sales price.

For this problem, Liu Junhai, a professor at the Law School of Renmin University of China, thinks that if it is difficult to determine the purchase price of consumers, but the price that the manufacturer sells to wholesalers or retailers can be determined, the average profit rate of the infringer's enterprise can be deduced, and the average profit rate of the industry retailer can be added to the price of the infringer as a producer to calculate the total punitive damages in public interest litigation.

"No one should get benefits by breaking the law. This is the most basic value. " Shi Jianzhong, vice president of China University of Political Science and Law, believes that the confirmation of compensation should be considered from the perspective of enterprise income, and the compensation amount of infringers should be determined through enterprise income.

Regarding the amount of compensation, Wang, a former member of the Judicial Committee of Beijing No.2 Intermediate People's Court, thinks that we can look at the turnover of the infringer's enterprise. If you can't find out the turnover of the enterprise, you can infer the compensation amount by looking at the sales profit or profit. "This is widely used in intellectual property cases."

After the consumer organization wins the case and the infringer pays compensation, can the injured consumer still claim compensation? Wang Xiang raised this concern.

In his view, if the Consumers Association wins the case, the court will still accept it and let the infringer compensate, which is unlikely.

Wang believes that the compensation paid by the infringer should be the main consideration, and the corresponding consideration should be paid according to the amount of compensation determined by the court for consumers. The insufficient part can be borne by the infringer.

Is it more reasonable to set up a fund?

In the punitive damages public interest litigation, although the Consumers Association is the plaintiff, it is the consumers whose real rights and interests are harmed. When the Consumers Association wins the case, who should be awarded the compensation and how to allocate it are also urgent problems to be solved.

In three cases won by Guangdong Consumer Council, Guangzhou Intermediate People's Court ruled that punitive damages should be turned over to the state treasury by the court. In this regard, South Korea, vice president of the Environmental Court of Guangzhou Intermediate People's Court, gave an explanation, because in the case of uncertain specific consumers, it is most in line with the actual situation. "This can safeguard the interests of the public."

According to Xiao Jianguo, a professor at the Law School of Renmin University of China, the judgment of Guangzhou Intermediate People's Court just reflects the particularity of the punitive damages claim of consumers' associations and the difference between the punitive damages claim of consumers and public interest litigation and private interest litigation. "If we think that the punitive claims filed by consumer associations are the sum of individual punitive claims of consumers, in fact, we are the sum of several unspecified consumer private interest lawsuits. How can it be called public interest litigation? "

However, in the opinion of some experts, how to use compensation for public interest litigation is still debatable.

Cao Shouye, deputy director of the Institute of Applied Law in China, the Supreme People's Court, believes that if the compensation is turned over to the state treasury, it is the same as an administrative fine. In the long run, Cao Shouye suggested setting up a consumer rights protection fund and putting the compensation into the fund.

Some experts also agree that it is more reasonable to set up a fund to manage compensation.

Isabella Chow believes that the fund model of public interest litigation in some countries can be used for reference, and a consumer rights protection fund can be established, which will be managed by a third party. If a specific consumer sues and is supported by a court decision, he can get compensation from these funds.

In the salary management, the follow-up will face the payment of salary. Han, a lawyer of Beijing Tianyuan Law Firm, believes that it takes a lot of time and energy to screen out consumers who are eligible to claim compensation, and setting up a fund can solve many problems professionally.

In view of the management of punitive damages, Liu Junhai proposed two schemes: one is to set up the China Consumer Civil Litigation Compensation Foundation with China Consumers Association as the initiator, and put all the compensation in this foundation, and put each compensation in the details, keep separate accounts and use it for special purposes. When consumers produce relevant case evidence and apply for compensation, they can pay compensation to consumers from this part of the money; The other is to entrust a foundation, such as china charity federation, or entrust a trust company as the trustee to determine the supervisor of the trust.

Source: China Youth Daily