What to do when consumer rights and interests are infringed

Consumer rights and interests refer to the rights that consumers enjoy in accordance with the law and the consequences to consumers when exercising these rights and protecting these rights. The due benefits come. Because of the benefits brought by enjoying and protecting according to the law, the rights and interests must be legitimate and legal, and they must also be protected.

Today, consumer issues have become a major social issue in social development. This article analyzes the basic spirit of the Consumer Rights Protection Law by analyzing the causes of consumer problems, the development of consumer protection movement legislation, and promoting the development of relevant consumer protection movements. The value orientation of this law and the specific provisions of its legal provisions all reflect the protection of consumers' rights and the constraints on the obligations of operators. Safeguarding the interests of consumers and protecting their legitimate rights and interests are the basic spirit of the Consumer Rights Protection Law. This article analyzes the current status of consumer rights protection in my country, hot spots for complaints, and newly introduced laws and regulations closely related to consumers in recent years, and proposes corresponding protective measures.

With the deepening of reform and opening up and the rapid economic development, the issue of consumer rights in our country has become increasingly serious. Incidents that harm the interests of consumers are very prominent. Unfair competition that infringes on consumers not only disrupts the social and economic order, but also dampens the enthusiasm of legal producers and operators, makes consumers complain, and damages the country's international reputation. The status of consumer rights protection legislation has become an important indicator of the development of a country's social civilization and the perfection of its legal system. In order to protect the legitimate rights and interests of consumers, my country has promulgated a series of laws and regulations to protect the rights and interests of consumers. For example, the Price Law, Trademark Law, Advertising Law, Food Hygiene Law, Drug Administration Law, Product Quality Law, Consumer Rights Protection Law, etc. In particular, the Consumer Rights Protection Law has become a strong backing for consumers to protect their legal rights. This article analyzes and compares the five ways to protect consumers' legitimate rights and interests in the "Consumer Rights and Interests Protection Law", points out a clear idea for consumers on how to protect their legitimate rights and interests, and on this basis, provides guidance on establishing and improving consumer rights and interests. Some suggestions are made to protect the legal system.

2. Negotiation and Reconciliation

Reconciliation means that both consumers and operators clarify their responsibilities through friendly negotiation on the basis of equality and voluntariness, obtain mutual understanding, and finally reach a fair and reasonable settlement. A way of resolving consumer disputes. Negotiable settlement means that after a dispute occurs, consumers and operators negotiate and exchange opinions on the relevant dispute on an equal and voluntary basis and finally reach a solution to the dispute. When consumers find that their rights and interests have been infringed, or have differences with operators on issues related to their own interests, they can proactively contact the operators and put forward their own requirements and opinions. This method is simple, efficient and economical, and most of the consumer disputes involved are disputes with small subject matter and relatively simple case facts. Negotiated settlement is the most common in real life. If this method is accepted, the legitimate rights and interests of consumers will be protected, and the profits and goodwill of operators will not be damaged. The procedure is simple and saves time and energy. . This method will not have any negative impact on the development of market economy and the stability of social order. Compared with other methods, it has the lowest cost. It is an ideal method for both consumers and operators. Therefore, it is also the preferred method for resolving disputes between consumers and operators around the world. However, the effect of this method mainly depends on the individual power of consumers and the attitude of operators. During the negotiation process between the two parties, since both parties are in an interactive relationship, only when both parties follow the principle of honesty and credit can they achieve a balance of interests. based on which a settlement agreement was reached. Consumers are in a weak position compared with powerful operators and cannot compete with operators with an advantageous position. If operators put the interests of consumers first, they will solve problems for consumers. If operators are not trustworthy, they may shirk responsibility and evade responsibility, and the interests of consumers will not be protected. The disadvantage of negotiated settlement is the lack of state coercion, which may cause consumers to waste energy and time when encountering irresponsible operators, and the problem remains unresolved. In that case, other better solutions should be sought.

3. Mediation

Mediation refers to a way for the parties to voluntarily negotiate on relevant issues and reach an agreement to resolve disputes with the support of a third party.

This is a long-standing folk settlement method, among which consumer association mediation is the most formal. Consumer association mediation means that consumers and operators submit their disputes to the consumer association for mediation, and both parties negotiate and mediate with each other to reach a way to resolve the dispute. Mediation is different from the negotiation and settlement between consumers and operators. Negotiation and settlement only involve consumers and operators. Mediation is a tripartite participation of consumers, operators and consumer associations. The consumer association mediates in the middle. At this time, the consumer association does not represent It must mediate impartially to the interests of any party; in addition, the consumer association should fully respect the opinions of the parties during the mediation process. Regardless of whether or how an agreement is reached during the mediation, it should be negotiated by the two parties themselves. If a mediation agreement is reached, both parties will automatically perform the agreement, and the consumer association shall not force performance. The Consumer Association can also provide both parties with reference plans for resolving disputes during the mediation process, but it cannot make decisions on behalf of both parties to the agreement.

In our country, consumer associations can be said to be the link between the country and consumers. Consumer associations at all levels have extensively attracted representatives from national government agencies to participate, which has opened up an effective way for consumer associations to win state support for consumer protection work. In 1983, the International Federation of Consumer Organizations designated March 15th as the "International Consumer Rights Day". After the China Consumers Association was approved by the State Council in December 1984, all provinces, cities, counties and other levels across the country Consumer associations have been established one after another. At present, more than 5,000 consumer associations and corresponding organizations have been established across the country. They receive hundreds of thousands of consumer complaints from all over the country every year. As of March 2005, the National Consumers Association*** More than 2.24 million consumer complaints were accepted. The Consumer Association negotiated and mediated with all parties on behalf of consumers, helping consumers recover economic losses of more than 400 million yuan. When a consumer association is entrusted by a consumer, it represents the interests of the consumer and is their agent. Accepting consumer complaints, solving consumers' problems, and handling them is an important task of the Consumer Association to directly help consumers and safeguard their legitimate rights and interests. The so-called consumer complaints refer to consumers who have been harmed in the process of purchasing, using goods or receiving services. The minimum bid amount is often small, and consumers are unwilling to spend too much time, money and energy to apply for arbitration to an arbitration institution or to the people's court. Prosecution. However, if these small matters are not resolved in time, they will often allow illegal operators to continue to infringe on the legitimate rights and interests of consumers.

Not all consumer complaint cases are disputes. Sometimes consumers just hope to stop the unfair competition behavior of certain operators and do not necessarily require operators to compensate them. It can be said that the mediation of consumer associations plays a very important role in the overall legal rights of consumers. It alleviates some conflicts between consumers and operators, bears some social burdens, and is indispensable in the construction of a market economy. of lubricants. Not only in our country, but also in other countries, mediation by civil society organizations is also an important way to protect consumer rights and interests. However, consumer associations also have some drawbacks. Since consumer associations and other non-governmental organizations have no legal enforcement power, they are not effective in deterrence in actual work and are often unable to achieve their goals, which limits their role to a large extent. Therefore, we often have to rely on administrative agencies or judicial agencies to resolve complaints from those disgusting operators who are dishonest and produce fake and shoddy products.

4. Appeals

Administrative appeals refer to requests made by citizens or legal persons to administrative agencies for protection when they believe that their legitimate rights and interests have been harmed. After an administrative complaint is filed, the administrative agency will make a decision in accordance with the law, and the administrative agency's activities to resolve disputes of a civil nature within a certain range are a type of administrative adjudication behavior. National administrative agencies are the executive agencies of state power agencies. Most of the laws and regulations that have been enacted currently are implemented by national administrative agencies. The economic supervision of administrative agencies occupies a dominant position in the national economic supervision system. In the construction of the entire national supervision agency, the agencies that are responsible for improving the socialist legal system, protecting the legitimate rights and interests of consumers in accordance with the law, and directly protecting the rights and interests of consumers include the industrial and commercial administrative management departments and their branches responsible for the comprehensive management of general commodities and services. Agencies; food hygiene departments responsible for quality issues of food, drugs, and cosmetics; price departments responsible for commodity prices or service charges; and technical supervision departments responsible for commodity quality, service standards, and commodity measurement issues.

my country's "Consumer Rights and Interests Protection Law" stipulates that "people's governments at all levels should strengthen leadership, organization, coordination, and supervision of relevant administrative departments to protect the legitimate rights and interests of consumers." It also stipulates that "people's governments at all levels should strengthen supervision, prevent Behaviors that endanger the personal and property safety of consumers shall be promptly stopped. In addition, Article 28 of the Consumer Rights and Interests Protection Law clearly stipulates that “the industrial and commercial administration departments of the people’s governments at all levels and other relevant administrative departments shall promptly stop the acts that endanger the personal and property safety of consumers.” In accordance with the provisions of laws and regulations, departments shall take measures to protect the legitimate rights and interests of consumers within the scope of their respective powers. Relevant administrative departments shall listen to the opinions of consumers and other social groups on the transaction behavior of operators and the quality of goods and services. , investigate and handle in a timely manner.” Therefore, the State Administration for Industry and Commerce has formulated some corresponding administrative regulations, such as the “Interim Measures for the Acceptance of Consumer Complaints by Industrial and Commercial Administrative Agencies”, “Measures for Punishments for Consumer Fraud”, and “Handling by Industrial and Commercial Administrative Agencies”. Measures for the Implementation of Consumer Complaints", etc. Administrative departments such as industry and commerce, price, health, and quality inspection actually perform their functions of protecting the legitimate rights and interests of consumers. The main factors that make them become an important way to protect consumer rights and interests are as follows:

(1) From the market From the perspective of economic development: In a market economy, in order to pursue their highest economic interests, operators sometimes harm social interests, including the interests of consumers. If the problem cannot be solved by the market itself, the government will need to act as a "referee" to maintain the order of market competition in order to ensure the rapid and healthy development of the market economy. The resolution of consumer complaints by administrative agencies is a way of safeguarding market economic competition, and a large amount of practice has proven that this is a very effective way of safeguarding.

(2) From the perspective of social interests: Through consumers' representations to the administrative departments, the administrative departments can use the enforcement power to promptly crack down on those operators who harm consumers and produce counterfeit and shoddy products. . While the administrative departments protect the legitimate rights and interests of consumers, they also improve the work efficiency of administrative agencies. In particular, the industrial and commercial administrative departments bear the important responsibility of supervising and managing commodities in the market circulation field. Doing a good job in consumer complaints will provide good data for the country's economic macro-control and lay a solid foundation for a prosperous market economy. If the legislative model of the "Environmental Protection Law" is followed and the administrative adjudication power is given to the industrial and commercial administrative agencies, the industrial and commercial administrative agencies can better leverage the advantages of its complete system and close ties with consumers and operators, efficiently handle rights disputes, and prevent disputes. Expand and promptly stop operators’ illegal acts that infringe on consumers’ rights and interests.

(3) From the perspective of consumer interests: There are many advantages in resolving disputes between consumers and operators by means of appeals; 1. Compared with settlement by means of appeals, negotiation and mediation, The appeal procedure is more formal and will be more reliable for consumers. The "Interim Measures for Industrial and Commercial Administrative Agencies to Accept Consumer Complaints" stipulates the procedures for industrial and commercial administrative agencies to accept consumer complaints, including time regulations, avoidance systems, etc. These procedural provisions ensure the correctness of industrial and commercial administrative agencies in handling administrative complaints. and reliability, so consumers can safely hand over disputes to the industrial and commercial administrative departments for resolution. 2. It is more economical to resolve consumer disputes through appeals. The "Interim Measures for the Acceptance of Consumer Complaints by Industrial and Commercial Administrative Agencies" stipulates that the cost of administrative representations shall be borne by the losing party. For small consumer disputes, it will be more beneficial to consumers to resolve them through appeals. There will be no consequences of winning the lawsuit and losing money. 3. In addition, appeals are efficient and fast. The "Implementation Measures for Handling Consumer Complaints by Industrial and Commercial Administration Offices" stipulates that the time to resolve consumer disputes through ordinary procedures is 60 days. For consumer disputes with smaller amounts in dispute, simplified procedures can be used, which will take less time. Same as other protection channels It is much more efficient than that.

5. Arbitration

Another way to resolve consumer disputes is arbitration by an arbitration institution. Arbitration, also known as "arbitration", refers to the act of parties to a dispute voluntarily submitting their disputes to an arbitration institution for ruling. Consumer disputes shall be handled in accordance with the provisions of the Arbitration Law of the People's Republic of China (referred to as the "Arbitration Law") adopted by the Ninth Session of the Standing Committee of the Eighth National People's Congress on August 31, 1994. Compared with other ways of handling consumer disputes, arbitration is participated by three parties: consumers, operators, and arbitration institutions. However, an arbitration agreement must be in place before one can apply for arbitration.

It is a quasi-judicial activity and has the advantages of fairness, authority, economy, speed and confidentiality.

According to Article 15 of the "Arbitration Law": "The Arbitration Commission is a member of the China Arbitration Association." An arbitration committee refers to an institution established in accordance with the law and has the power to accept a certain range of economic disputes and conduct arbitration outside the court in accordance with the arbitration agreement. The Arbitration Association is a social group legal person, so it can be seen that the Chinese Arbitration Commission is a non-governmental private institution. According to the provisions of the Arbitration Law, large and medium-sized cities in my country, that is, where the people's governments of provinces, autonomous regions, and municipalities directly under the Central Government are located, as well as other cities with districts that need to establish arbitration institutions, should have arbitration committees. Arbitration committees have no hierarchical jurisdiction and geographical jurisdiction. jurisdiction. Since arbitration institutions are only established in districted cities, it will be very inconvenient for consumers in other areas to resolve disputes in this way. And as long as one party is unwilling to choose arbitration, the arbitration institution will not accept the case. Therefore, this method is not favored by the parties involved in the dispute in my country. Currently, not many people choose arbitration to resolve consumer disputes.

The United States is the first country to try to resolve consumer rights disputes through arbitration. In 1968, the American Arbitration Association accepted funding from the Ford Foundation and established the National Dispute Resolution Center, which established an arbitration system for consumer rights disputes and began to operate nationwide. In the United States, some businesses often stipulate in contracts that arbitration will be the preferred method of resolving disputes. Especially in car sales, financial services, medical and other home service institutions, arbitration clauses are included in the contracts as a mandatory content. If consumers and operators are willing to choose arbitration as a way to resolve consumer disputes, it will be a way that is beneficial to both society and the market economy. Some cities in my country have also begun attempts to arbitrate consumer rights. For example, since the Huzhou Consumer Association established the Consumer Dispute Arbitration Center in 2000, the Zhejiang Huzhou Consumer Dispute Arbitration Center has resolved more than 170 disputes for consumers. Through the efforts of the China Consumers Association and local consumer associations, and after consultation with various regional arbitration committees, our country has established branches of arbitration committees based on consumer associations in Henan, Shandong, Hebei, Zhejiang, Liaoning, and other places. An agency that specializes in handling consumer disputes, especially small-sum consumer dispute cases. Of course, if the consumer rights arbitration mechanism wants to function properly, it needs to be recognized by the legal system and must be accepted by the existing arbitration law. Only then can its awards be enforceable. Otherwise, the effectiveness of the arbitration award will only be equivalent to The current mediation document and consumer rights arbitration mechanism are just another copy of the existing consumer association mediation.

6. Litigation

In my country, consumers can also sue to the People's Court to resolve disputes. Litigation is the most powerful way to resolve disputes. The court exercises judicial power on behalf of the state and its judgments are mandatory. In addition, the court can enforce effective judgments according to its own powers. Consumer litigation can be divided into three types: civil litigation, administrative litigation, and criminal litigation. Here, we generally talk about civil litigation. Although this approach is very powerful and effective, in practical life due to the following factors, civil litigation should not be the main way to resolve consumer disputes.

(1) From the perspective of social interests: protecting consumer rights and interests through civil litigation can only be the final way to protect consumers, and should not be the first choice. When consumers seek litigation channels to resolve disputes, they not only have to spend a certain amount of money on their own, but also incur judicial costs from the court. If all consumer disputes are resolved by the judicial organs, the judicial organs will inevitably be overwhelmed, and the public interests of society will also be harmed. Therefore, from the perspective of considering social interests, decentralizing consumer dispute resolution channels will be more conducive to social development and stability.

(2) From the perspective of market economy: Although my country’s market economy system has been somewhat improved, it has not yet fully embarked on the formal track. A large number of unfair competition behaviors that infringe on consumer rights have flooded the market, so The market must be regulated in a highly efficient and effective manner. It is obviously more feasible to achieve this goal through administrative protection than through judicial means.

(3) From the perspective of consumers’ interests: In our country, the general consumers have poor awareness of their rights. When their rights are infringed, they often let it go without resorting to it as a last resort, and are unwilling to go to court to litigate. Moreover, some consumers lack understanding of the law, and most of the operators they deal with are large companies with strong financial resources.

They lack confidence in whether they can win the lawsuit, and are afraid that after filing a lawsuit, not only will the damage suffered not be compensated, but it will also cause greater waste of human and financial resources. With the increased publicity of the "Consumer Rights and Interests Protection Law", especially the emergence of the "Wang Hai Anti-Counterfeiting" phenomenon, consumers' legal awareness of safeguarding their own legitimate interests has been cultivated. According to my country's current legal provisions, all consumer expenses in litigation must be borne by the complainant. However, since consumers’ benefits are limited, even if they win the lawsuit, according to Article 49 of the Consumer Rights Protection Law, they can receive up to double the amount of compensation. For those small-amount consumer disputes, if consumers want to litigate to protect their legitimate rights and interests, it will obviously outweigh the losses. Obviously, the high cost of litigation has become a stumbling block for consumers to choose civil litigation to protect their legitimate rights and interests.

As the country continues to improve the field of consumer rights protection, especially the "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation" (Fa Shi [2001] No. 33), "On the Trial of Commercial Housing Sales Contracts" The promulgation of some regulations such as the Interpretation of Several Issues Applicable to Laws in Dispute Cases (Fa Interpretation [2003] No. 7) has given consumers a clearer legal basis in the field of civil litigation. Although there are provisions for simplified procedures in my country's current civil procedure law, it is still cumbersome for consumer rights disputes where the subject of dispute is small and there are relatively many cases. Consumers often cannot bear the burden of time-consuming and laborious litigation. Therefore, in terms of the protection of consumer rights and interests in procedural law, our country should follow the example of foreign countries in setting up small claims procedures to specifically accept and resolve dispute cases where consumers have suffered damage due to defective products and the amount in dispute is relatively small.

7. Conclusion

Through our comparison and analysis of the five ways to protect consumer rights. The author believes that in reality, when resolving consumer disputes, Chinese consumers can choose corresponding solutions based on different subjects and different situations. The establishment of a legal system for the protection of consumer rights and interests should focus on administrative protection, supplemented by mediation and arbitration, and with civil litigation as the final channel. At the same time, we will strengthen the standardization and improvement of administrative laws and regulations that protect consumer rights and interests, and strengthen administrative law enforcement to improve its legal level. It is urgent to formulate a consumer assistance system. After the consumer assistance system is implemented, the administrative agency that protects consumer rights and interests can sue the people's court to demand that the offenders be held civilly liable and compensate the victims for their losses. In addition, social media and consumer movements can also be used to widely publicize consumers' awareness of rights protection, and form a good social atmosphere of "honesty and anti-fraud" to resist counterfeit and shoddy goods and self-protect legitimate rights and interests. Through public opinion, counterfeit and shoddy goods will be eliminated from the stage of history. As my country's legalization process advances, the market economy gradually improves, and consumers' awareness of rights protection continues to increase. The ways to safeguard consumer rights and interests will be more complete and efficient.