1. What is the protection of consumers' rights and interests in the Civil Code?
The Civil Code protects the legitimate rights and interests of civil subjects and adjusts the personal and property relations between equal subjects. The Civil Code prohibits any organization or individual from infringing on the personal rights, property rights and other legitimate rights and interests of civil subjects. The Law on the Protection of Consumer Rights and Interests protects the legitimate rights and interests of consumers who buy, use goods or receive services for daily consumption. Civil Code is a consumer protection law between general law and special law. In the protection of consumers' rights and interests, priority should be given to the Consumer Protection Law and other laws and regulations.
At present, there are many laws and regulations to protect consumers' rights and interests, such as consumer rights protection law, food safety law, product quality law, tourism law, advertising law, trademark law, anti-unfair competition law and anti-monopoly law.
Article 128 of the Civil Code incorporates the protection of the legitimate rights and interests of consumers and other special groups into the Civil Code, thus making the protection of consumers a part of the Civil Code.
From the perspective of code, we can give full play to the role of civil code in private law and improve the special protection system of civil code for vulnerable groups; From the consumer's point of view, according to the relevant provisions of the Civil Code, it is beneficial for consumers to protect their rights and interests.
Two. Relevant provisions in the civil code to protect consumers' rights and interests
The Law on the Protection of Consumers' Rights and Interests stipulates that consumers enjoy ten basic rights, such as the right to safety, the right to know, the right to choose independently, the right to fair trade, the right to obtain compensation, the right to set up rights protection organizations, the right to acquire knowledge, the right to be respected, the right to protect personal information and the right to supervise. The civil code also has relevant provisions on this.
Provisions of the Civil Law on the Right to Life and Health
The right to life and health is a basic right enjoyed by consumers. On the basis of the right to life and health, the Civil Code comprehensively stipulates the right to life, health and body, and stipulates its contents in the personality right, ensuring that consumers can claim the protection of the corresponding rights when their right to life and health is violated.
The protection of the right to life and health in the civil code is also reflected in the compilation of contracts and tort liability.
1. The exemption clause that damages the right to life and health is invalid.
Article 506 of the contract part of the Civil Code stipulates that the clauses exempting consumers from the right to life and health in the contract are directly invalid.
2. Compensation for mental damage caused by breach of contract
Article 996 of the Civil Code stipulates that one party's breach of contract damages the other party's personality right and causes serious mental damage. If the injured party chooses to require it to bear the liability for breach of contract, it will not affect the injured party's request for compensation for mental damage. The increase of this clause not only expands the scope of application of compensation for mental damage, but also helps to protect consumers' right to life and health.
3. Safety obligations of operators
Article 1 198 of the Civil Code stipulates the liability clause of the security obligor, supplementing the content that "the operator, manager or organizer may claim compensation from a third party after assuming supplementary responsibilities".
It is forbidden to throw objects from buildings.
Article 1254 of the Civil Code clearly stipulates that it is forbidden to throw objects from buildings. Compared with Article 87 of Tort Liability Law, this article increases the obligation of property service enterprises to ensure the safety of objects thrown from buildings, and emphasizes the responsibility of property for the safety of objects that harm people's interests. Emphasize the importance of civil code to people's right to life and health.
(B) "Civil Code" provisions on the right to know
1. Determine the revocable system of contracts to protect consumers' right to know.
If a business operator provides goods or services and misleads consumers by falsehood, fraud or other improper means, the contract signed on this basis is a revocable contract. In the section on the effect of civil juristic act, the Civil Code stipulates that consumers have the right to request the cancellation of the contract if their intention is untrue due to fraud. This is to protect consumers' right to know from the perspective of contract.
2. If the consumer fails to pay attention to or understand the format clause that has a significant interest with him, he can claim that the clause will not become the content of the contract.
According to Article 496 of the Civil Law, standard clauses are clauses drawn up by the parties in advance for repeated use, and they were not consulted with each other when concluding the contract.
Where a contract is concluded by standard terms, the party providing the standard terms shall follow the principle of fairness to determine the rights and obligations between the parties, and take reasonable measures such as exempting or lightening their responsibilities to remind the other party of the terms that have a significant interest in them, and explain the terms according to the requirements of the other party. If the party providing the standard terms fails to fulfill its obligation to prompt or explain, so that the other party fails to pay attention to or understand the terms that have a significant interest in it, the other party may claim that the terms will not become the content of the contract.
The contract signed by the operator and the consumer is often a format contract unilaterally drawn up by the operator, which leads to consumers' indifference or understanding of the terms that have great interests. According to the provisions of the Civil Code, consumers can claim that this clause will not become the content of the contract, which will compact the operator's obligation to inform and fully protect consumers' right to know.
Provisions on Independent Choice in Civil Law
1. It is convenient for owners to realize their right to choose their own property service companies.
(1) Consumers do not have the right to choose pre-property service companies, and pre-properties are often "long-term properties".
When buying a house, consumers can choose the developer of commercial housing, the location of the house and the room type in their minds. However, once consumers buy a house, they can't choose a property service company, and they can't negotiate with property service providers about the upfront property fees. This is due to the indistinguishability of buildings. The pre-property service enterprises are selected by the development enterprises, and the pre-property fees paid by consumers are also determined by the development enterprises. Consumers have no right to choose property service enterprises in the early stage. The Property Management Regulations stipulate that owners have the right to hire and dismiss property service enterprises. However, before the owners' meeting is held and the owners' committee is established, a single owner cannot exercise the right to change the property service enterprise. Moreover, the threshold for convening the owners' meeting is high, and it is difficult to set up the owners' committee, which makes the property service enterprises previously selected by development enterprises become "long-term properties".
(2) The Civil Code lowers the threshold for setting up the owners' committee, which is conducive to realizing the owners' right to choose property service enterprises.
First of all, owners can set up owners' meetings and elect industry committees. Article 277 of the Civil Code stipulates that owners may set up owners' meetings and elect owners' committees in accordance with laws and regulations.
Secondly, reduce the voting threshold for owners to hire and dismiss property service companies. The original "Property Management Regulations" stipulated that the hiring and dismissal of property service enterprises or other managers should be approved by the owners whose exclusive parts account for more than half of the total construction area and more than half of the total number. Now Article 278 of the Civil Code reduces this voting ratio to the "double and half consent" of the owners who participate in the voting. This makes it relatively easy for owners to hire or dismiss property service enterprises, and guarantees the owners' right to choose independently in property service enterprises.
The Civil Law protects consumers' right to fair trade.
The provisions of the Civil Code on intellectual property protection protect consumers' fair trade.
Producing and selling counterfeit products not only infringes on the intellectual property rights of others, but also infringes on consumers' right to know and fair trade.
Article 185 of the Civil Code stipulates that if the circumstances are serious, the infringed person has the right to request corresponding punitive damages.
The Civil Code not only strengthens the protection of intellectual property rights, but also strengthens the protection of consumers' fair trade, thus protecting consumers from counterfeit products.
Provisions on the Protection of Personal Information Rights in Civil Law
The Civil Code clearly stipulates the right to privacy as an independent right, which expands the connotation and scope of the right to privacy on the basis of the Consumer Protection Law, refines the protection of personal information, and clarifies the obligations and responsibilities that operators should bear for the protection of consumers' personal information.
1. Provisions on privacy in the Civil Code
The first paragraph of Article 1032 of the Civil Code clarifies that natural persons have the right to privacy. The second paragraph stipulates the scope of privacy, that is, the private life of a natural person is peaceful, and it is private space, private activities and private information that others do not want to know. In the protection of privacy, the Civil Code adopts direct protection, which strengthens the protection of privacy and ensures that consumers' private fields and private activities are not infringed.
2. Provisions of the Civil Code on the protection of personal information
(1) Personal information protection
Article 1034 of the Civil Code stipulates that the personal information of natural persons is protected by law. Compared with the provisions on personal information in the Consumer Protection Law, this article expands the protection scope of personal information, which not only determines personal information that can directly identify personal identity information, but also clarifies that personal information that cannot be identified by itself but can be identified by combining with other information is also personal information, both of which are protected by the Civil Code.
(2) Collection and use of personal information
Article 29 of the Law on the Protection of Consumers' Rights and Interests stipulates that operators should follow the principles of legality, fairness and necessity when collecting and using consumers' personal information. Compared with Article 29 of the Law on the Protection of Consumers' Rights and Interests, Article 1035 of the Civil Code follows the principles that this article should follow in the collection and use of personal information, and at the same time, it adds the principle that the collection and use of personal information should not be over-handled. Articles 1037 to 1038 of the Civil Code, on the basis of Article 29 of the Law on the Protection of Consumers' Rights and Interests, add acts against personal information, and individuals can claim that information collectors delete personal information on the grounds of breach of contract or violation of law. Emphasize that information collectors are generally operators, or the backstage of apps and businesses we consume should follow the obligations when processing and utilizing consumers' personal information.
Third, the provisions of the Civil Code on punitive damages.
(A) the provisions of punitive damages
The Food Safety Law, the Consumer Protection Law and the Tourism Law all stipulate the multiple calculation of punitive damages. The fine stipulated in the second paragraph of Article 148 of the Food Safety Law is ten times the payment price or three times the loss; The multiple of liquidated damages stipulated in the second paragraph of Article 55 of the Consumer Protection Law is less than twice the loss compensation; Article 70 of the Tourism Law stipulates that consumers can demand compensation of more than one time and less than three times the travel expenses.
Provisions on punitive damages in the Civil Law
Article 1207 of the Civil Code stipulates that if a product is produced and sold knowing that it is defective, or if effective remedial measures are not taken in accordance with the provisions of the preceding article, causing death or serious damage to the health of others, the infringed person has the right to request corresponding punitive damages.
The provision of punitive damages is not only to compensate consumers for the damage they have suffered in the process of consumption, but also to punish and contain malicious infringers.
(3) Activate the uncapped punitive damages clause.
The civil code does not stipulate the amount of punitive damages, and the following factors should be considered when applying punitive damages.
First of all, we need to consider the harm of infringement. Judging the harmfulness of the infringed person by the damage he has suffered is the basis for calculating punitive damages.
Secondly, we need to consider whether the harm caused by infringement is extensive. Whether the infringement has caused damage to the rights and interests of a wide range of unspecified consumers, the proportional multiple of punitive damages should be set according to the scope of the damage.
Third, it is necessary to consider the interests of the infringer due to infringement. Tort interests and compensation ability should be regarded as factors that increase the penalty multiple.
As one of the faithful laws to protect citizens' rights and interests, the Civil Code also plays a leading role in protecting consumers' rights and interests. The Consumer Protection Law, the Food Safety Law, the Advertising Law and other bills subdivide the basic rights and interests of consumers and provide an important reference for the court to hear cases.