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Keep pace with the times, pioneer and innovate, and create a new situation in the protection of consumer rights
―――Shallow Discussing the implementation of the "Consumer Rights and Interests Protection Law" and related legal issues
In October 1993, our country promulgated the "Consumer Rights and Interests Protection Law of the People's Republic of China", which was the first legislation to The form distinguishes consumers from ordinary purchasers of goods or services and provides higher protection standards. It is a milestone in the protection of consumer rights and interests in our country's laws and provides a strong guarantee for the protection of the rights and interests of our country's consumers.
Protecting consumer rights and interests is a systematic project. A sound and complete consumer rights and interests protection system must be established. Under the unified leadership of the government, the roles of industry and commerce, quality inspection, price, health and other departments should be given full play. To implement the linkage between industrial and commercial 12315 and public security 110, all relevant administrative agencies must perform their respective responsibilities within their respective scope of duties and administer in accordance with the law. At the same time, various departments should strengthen coordination, cooperate with each other, support each other, and form synergy to jointly protect the legitimate rights and interests of consumers.
The important idea of ??"Three Represents" is not only the general guiding ideology that must be adhered to in the protection of consumer rights and interests, but also the goal requirements that must be strived to achieve. It is also the fundamental standard for testing and measuring the work of protecting consumer rights and interests. . To effectively protect consumer rights and interests, we must take the important thought of "Three Represents" as the fundamental policy for strengthening consumer rights protection and team building in the new era, implement it into various consumer rights protection work, and strive to create a consumer A new situation in the protection of rights and interests.
Experiences and practices in implementing the "Consumer Rights and Interests Protection Law"
1. Application of the principle of liability in the mediation of consumer disputes
1. The principle of fault liability in the mediation of consumer disputes Application in consumer dispute mediation
Fault is a subjective psychological state, which can be divided into two forms: intentional and negligent. Intention, also known as malice, means that the actor knows and promotes or hopes that the harm will occur; negligence means that the actor neither hopes nor foresees the outcome, but should foresee and avoid it.
The subjective mental state is manifested through the actor's external activities, and the actor's fault is determined through a comprehensive judgment of objective facts that are sufficient to indicate the actor's subjective mental state. Therefore, an objective standard can be established to judge fault in law. This standard is a certain degree of "duty of care", that is, "a person with ordinary judgment and willpower can avoid the consequences with relevant attention under relevant background circumstances." situation". In consumer disputes, there are only a few cases where it can be clearly judged that the offender has subjective intention. It is more necessary to judge whether the offender is negligent. In this case, the objective judgment standard of "duty of care" should be used.
The application of the principle of fault liability regarding the objective judgment standard of fault and the judgment method of fault presumption in the practice of mediation of consumer disputes can be carried out according to the following three steps: 1. Proof of the fact of damage. Consumers must prove that their rights or interests have been harmed, and prove that such harm is directly linked to the operator's behavior. 2. The burden of proof of fault is reversed. According to the fault presumption method, the operator's subjective fault should be proved by himself, that is, the operator should provide counter-evidence that he was not at fault. 3. Determination of responsibility. Mediators need to judge: whether the damage to consumers' rights and interests is clearly implemented, whether the causal link between the damage and the operator's behavior exists, and whether the operator's counter-evidence of fault meets the requirements for exemption. For example, in December last year, Ms. Huang was slightly scalded by the boiling water spilled from the kettle on the waiter's hand while eating in a restaurant. After investigating the case, our "12315" Consumer Complaints and Reporting Center believes that according to Article 18 of the "Consumer Rights and Interests Protection Law", operators should ensure that the services they provide meet the requirements for protecting personal safety. Although the physical collision between the consumer and the waiter was not caused intentionally by the waiter, the waiter should have the obligation to prevent such things from happening. Moreover, the operator cannot provide force majeure, major fault of the consumer, accident or third party fault, etc. Reasons for exemption.
Therefore, operators should bear civil liability for damages caused by their negligence. According to Article 41 of the Consumer Rights Protection Law, operators should compensate consumers for initial medical expenses, reasonable follow-up medical expenses, transportation expenses, and lost work expenses. ***1300 yuan.
2. The application of the no-fault principle in the mediation of consumer disputes
The first category is liability for damage caused by defective products. For disputes over damage caused by defective products, according to the Product Quality Law, producers and sellers bear joint and several liability. For damages claimed by consumers, producers or sellers should first compensate regardless of whether they are at fault, and then pay according to their liability. Attribution for recovery. For example: Consumer Liu purchased a children's tricycle in a children's products store. The handrail of the seat broke during use, and the child fell slightly. After investigating the case, our "12315" Consumer Complaints and Reporting Center believes that the product is unreasonably dangerous and the obvious lack of strength of the handrail is a design defect. According to the "Product Quality Law", personal injury caused by the defective product In case of damage, consumers can choose to claim damages from the producer or seller without proving fault. After mediation, the children's products store refunded the purchase price and compensated 300 yuan for medical expenses.
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The second category is liability for product quality breach of contract. Article 107 of the "Contract Law" stipulates that "if a party fails to perform its contractual obligations or performs its contractual obligations inconsistently with the agreement, it shall bear the liability for breach of contract such as continuing to perform, taking remedial measures, or compensating for losses." As long as there is a fact of breach of contract, the breaching party must bear liability for breach of contract regardless of whether it is at fault. Liability for breach of contract on product quality is most common in consumer complaints. For example: Consumer Wang used the "Special Black Hair Spirit" produced and sold by a company in Guangdong but it was ineffective and caused hair loss. After investigating the case, our "12315" Consumer Complaints and Reporting Center believes that the product manual is the manufacturer's guarantee and commitment to the product. The effect of the product is inconsistent with the product description, which is essentially a product quality breach of liability. According to Article 40 of the Product Quality Law, if the product does not meet the quality status indicated in the product description, the seller shall return the product and compensate the consumer for the loss. After mediation, the respondent refunded the purchase price to the consumer and compensated 600 yuan.
3. The application of the principle of fair responsibility in the mediation of consumer disputes
Since the purpose of the principle of fair responsibility is to embody the basic social norms and values ??of "fairness" and make the parties fair and reasonable Therefore, the infringer is not fully responsible for the damage, but only shares part of the responsibility according to the circumstances. For example, the gas water heater purchased by consumer Chen exploded during use, frightening a child taking a bath, but no other property damage was caused. After accepting the case, our "12315" Consumer Complaints and Reporting Center believed that for the consumer, he has been using the product for more than a year, indicating that he has the knowledge and skills to use the product, and there were no obvious signs of explosion. improper use. For product manufacturers, it is difficult to identify the product as a defective product if it complies with national standards, industry standards and has passed quality certification. Our "12315" Consumer Complaints and Reporting Center considers the economic strength and degree of damage of both parties and conducts mediation based on the principle of fairness and responsibility. After mediation, the producer compensated the consumer 2,000 yuan. Both parties expressed satisfaction with the mediation results.
2. Mediation of technical service disputes
Among the daily complaints, complaints about technical service infringement are increasing day by day. This type of infringement caused by technical services is different. For common service infringements such as exaggerating faults, secretly replacing original parts, passing off fake products as genuine, and passing off inferior products as good ones, the methods and methods of infringement are highly secretive and difficult to detect. For example: Consumer Zhang purchased a certain brand of computer the year before last and contacted the manufacturer's local designated repairer for free on-site maintenance every six months. Shortly after the most recent maintenance, the computer chip burned out. After consulting professionals, it was discovered that the maintenance personnel deliberately increased a certain technical parameter, resulting in a shortened chip life (because the replacement of spare parts of this brand can only be carried out at this maintenance point, and the maintenance point can profit from it). Consumers questioned the quality of its maintenance services and demanded compensation for all economic losses. After investigating the case, our "12315" Consumer Complaints and Reporting Center believes that according to Article 22 of the "Consumer Rights and Interests Protection Law", operators should ensure that under normal use of goods and receipt of services, the goods or services they provide should be quality, performance, use and expiry date.
Therefore, maintenance personnel change product technical parameters without authorization, causing consumers to replace spare parts that do not need to be replaced in order to make profits, causing damage to consumers' interests, and this behavior is subjective and intentional. According to the provisions of the Consumer Rights Protection Law, consumers who suffer personal or property damage due to purchasing or using goods or receiving services have the right to obtain compensation in accordance with the law. At the same time, the completion and issuance of maintenance contracts and maintenance cards have in fact established a contractual relationship between the two parties. Therefore, consumers can also require the defaulting party to assume liability for breach of contract and compensate for economic losses in accordance with the Contract Law. Agent repairers will replace new computer chips for consumers free of charge, and promise to replace the computer chips free of charge if there are quality problems within three years.
3. Protection of consumers’ rights to fair trade
Nowadays, many businesses and hotels are competing to hold activities such as buy one get one free, discount sales, shopping lottery, consumption coupons and other activities. In order to achieve the purpose of promotion. However, when organizing events, they all claim that they have the final right of interpretation. The sales promotions that the merchants claimed to be lavish were greatly reduced in the "final explanation". For example: Mr. Chen went shopping in a shopping mall, and the shopping mall was holding a shopping lottery. Mr. Chen was happy and bought a lot of things to participate in the lottery. Fortunately, he won the first prize, and the prize was a refrigerator. When he went to redeem his prize, he discovered that the prize was an old refrigerator. He went to the merchant to reason, and the answer he got was, "We didn't say that the refrigerator as the prize was new. Our mall has the final right to interpret this event." After investigating the case, our "12315" Consumer Complaints and Reporting Center believes that the merchant's behavior violated the consumer's right to fair trade. The consumer went shopping for preferential conditions, but the discount turned out to be a discount, thus damaging the consumer's rights. rights and interests. Furthermore, merchants’ exercise of their self-proclaimed “right of final explanation” essentially violates consumers’ right to know. Consumers have no way of knowing what exactly are the benefits promised by merchants under the “right of final explanation.” After a consumer engages in consumption behavior, a contractual legal relationship is formed between the consumer and the merchant. Our country’s Contract Law clearly stipulates that both parties to a contract have the right of interpretation, but the final power of interpretation should be exercised by the judicial authority that is the final resolution authority. Therefore, the merchant is ordered to deliver a brand new refrigerator to Mr. Chen as promised.
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Some thoughts on improving my country’s “Consumer Rights and Interests Protection Law”
1. Several shortcomings of the current “Consumer Rights and Interests Protection Law”
1. Regarding the definition of consumer
As for the concept of consumer, my country's theoretical circles and judicial practice circles have not yet formed a unified understanding. In 1978, the Consumer Policy Committee of the International Organization for Standardization defined the concept of consumers and believed that consumers refer to “individual members of society who purchase or use goods and services for personal purposes.” Article 2 of my country's "Consumer Rights and Interests Protection Law" stipulates that "Consumers purchase, use goods or receive services for daily consumption needs, and their rights and interests are protected by this law" brings a certain degree of difficulty in mediating consumer disputes and may cause judicial confusion. For example: A consumer in Wuhan bought more than 10 Walkmans, suspected that they were counterfeit brand-name products, and sued the court. The court believed that purchasing so many products at one time was obviously not for daily consumption, and ruled against the plaintiff. The judge wrote an article in a local newspaper that people who purchase too many goods at one time can be presumed not to be consumers, and specifically pointed out that after consulting relevant experts, experts also held this view. The author believes that such inference is unscientific. If a citizen purchases a certain number of Walkmans at one time in order to give them to friends, is he a consumer? If a citizen purchases the same number of Walkmans in installments, is he a consumer? If a citizen purchases on behalf of a friend, is he a consumer? Therefore, this “behavioral purpose” provision in my country’s Consumer Rights Protection Law is not conducive to the protection of consumer rights and interests. It has basically become a common reason for operators to defend consumer rights and exempt or reduce their own responsibilities. This provision will logically deduce that operators have the right to examine why the public "purchases, uses goods or receives services": in litigation, it will cause the parties to prove why they need to "purchase, use goods or receive services". Therefore, the author believes that the provisions on "purpose of behavior" in the "Consumer Rights Protection Law" should be diluted and can be modified to "the public purchases and uses goods or receives services, and their rights and interests are protected by this law."
2. Regarding the use of the word "enterprise"
Article 36 of the "Consumer Rights and Interests Protection Law" stipulates that "when consumers purchase or use goods or receive services, If its legitimate rights and interests are harmed due to the division or merger of the original enterprise, it may demand compensation from the enterprise that assumes its rights and obligations after the change." The author believes that this provision does not cover the split and merger of operators other than enterprises. After the original enterprise is divided or merged, the newly changed economic organization is not necessarily an enterprise, and the operators include legal persons, other economic organizations and individuals engaged in commodity operations and profit-making services. Therefore, the latter "enterprise" in this regulation should be The word was changed to "operator".
2. Protection of consumer rights after China’s accession to the WTO
Over the years, with the active efforts of relevant government departments and the close attention and strong support of all sectors of society, my country’s consumer rights protection has The cause has made great progress: laws and regulations on the protection of consumer rights and interests have been gradually improved, and administrative protection of consumer rights and interests has been continuously strengthened: "3.15" International Consumer Rights Day has become a household name, and consumers' awareness of rights protection has been greatly enhanced: consumption across the country Consumer rights protection organizations have become an important force in protecting consumer rights: international cooperation in the field of consumer protection continues to expand. A four-in-one, coordinated and interactive social mechanism for consumer rights protection that integrates legal supervision, administrative supervision, community supervision and public opinion supervision is gradually taking shape. However, "joining the WTO" has brought opportunities and challenges to my country's consumer rights protection movement.
my country's accession to the WTO will give our consumers greater choices, more consumption methods and newer consumption concepts. There will be more disputes involving the quality and services of imported products. Therefore, my country's consumer rights protection work must respond promptly and adopt advanced methods, methods and concepts suitable for China's national conditions to improve the standards of consumer rights protection. The author believes that for administrative and judicial agencies, breakthroughs are urgently needed in the following aspects:
1. The burden of proof in quality disputes
Commodity safety and quality assurance are the center of market transactions. It is also the center for consumer rights protection. Sometimes due to objective restrictions, it is difficult for consumers to provide evidence, and they are at an obvious disadvantage compared with operators. At this time, the author believes that administrative and judicial organs can appropriately adopt the method of inversion of evidence, that is, it is up to the respondent to prove that his behavior is not infringing.
2. Small-amount disputes
At present, most complaints from consumers in our country are small-amount disputes. Many countries have enacted special procedural laws for small claims disputes to improve efficiency, reduce costs, and save manpower and material resources. For small-amount disputes in our country, the people's courts use general litigation procedures to handle them. The author believes that for small disputes, simple procedures should be applied as much as possible, and the role of mediation organizations, civil groups, and community organizations in society should be brought into play at the same time, so that such simple disputes can be resolved simply and quickly.
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3. Social Public Interest Litigation Issues
The current regulations require that the representative of representative litigation must be a party to the case, so consumer organizations are not recognized as representing consumers. or the ability to litigate. The author believes that by expanding the qualifications of consumer organizations as parties, the law empowers consumer associations to determine the legal status of consumer organizations as the subject of litigation based on authorization and legal procedures. It will also be used for violations of the law, infringement of consumer rights, damage to national interests and If you act in the interests of the public, file a lawsuit with the court and pursue legal responsibility.
3. Protection of the rights and interests of online shopping consumers
As a new business operation model, e-commerce is fast, convenient, efficient, low-cost, and can conduct "global operations". " and "all-weather" transactions and other huge advantages have won the favor of many enterprises and consumers, becoming an unstoppable trend. Undoubtedly, the emergence of e-commerce has brought more business opportunities to enterprises and a new way of purchasing to consumers. However, at present, my country's network information flow, logistics, capital flow systems and corresponding laws and regulations are not yet complete. To this end, the author believes that the following work should be carried out as soon as possible to meet the needs of e-commerce supervision.
1. Regulate e-commerce behavior in the form of law
On the premise of encouraging the development of e-commerce, regulate e-commerce behavior in the form of legislation and clarify the market access of commercial websites Qualifications, market operation behaviors, composition methods, etc., make the commercial website have "business entity qualifications" and meet the conditions of the subject of complaints in the "Consumer Rights and Interests Protection Act". At the same time, it is also necessary to clarify the supervision and management status of the industrial and commercial administrative organs over e-commerce activities, clarify the legal effect and confirmation methods of electronic documents, and clarify the confirmation procedures, payment procedures, return or exchange procedures for online transactions, and the violation of contracts by commercial websites. The responsibilities that should be assumed at the time of the agreement and the obligation to provide after-sales services, as well as the laws that should be applied when cross-border consumer disputes occur. Commercial websites must provide consumers with accurate information about product producers to ensure the ultimate realization of consumers’ legitimate rights and interests.
2. Establish a unified national e-commerce certification system
Since all parties in e-commerce transactions usually do not meet each other, there are greater potential risks, so a more traditional e-commerce certification system is needed. A more complete identity authentication system with a business model. Therefore, it is necessary to establish a specialized national certification system to carry out e-commerce certification work in a detached, authoritative and impartial manner, and to confirm the legality, authenticity and accuracy of the identity of enterprises engaged in e-commerce activities.
3. Establish a national unified online complaint center and a nationally networked "economic household registration" database
It is recommended to establish a national unified online complaint center to accept online shopping complaints nationwide. Consumer complaints, and based on the relevant information provided by the consumer about the enterprise being complained against, the accepted consumer complaint case will be transferred to the consumer rights protection department of the province or city where the enterprise being complained against will represent the consumer to the enterprise being complained against. seek compensation, and impose severe administrative penalties on the complained companies in accordance with relevant laws and regulations for behaviors that seriously infringe upon the legitimate rights and interests of consumers. Afterwards, the processing results will be fed back to consumers through the online complaint center to effectively protect consumers' legitimate rights and interests from infringement.
If the legitimate rights and interests of online shopping consumers are infringed upon, after identifying the target of the complaint, the consumer needs to have more detailed information in order to complain or sue. Therefore, it has become very urgent and necessary to establish a nationwide networked "economic household registration" database; at the same time, the rapid development of network technology has also made this idea possible and feasible.
In short, protecting the legitimate rights and interests of consumers means serving the people wholeheartedly. Whether it is reform and opening up or joining the WTO, whether it is developing productivity or developing advanced culture, in the final analysis, it is for the benefit of the people. To protect the legitimate rights and interests of consumers, we must use the standards of "three benefits" and "three representatives" to measure whether laws and policies are in line with the comprehensive development and realization of consumer rights and interests. To increase the protection of consumer rights and interests, on the one hand, it is necessary to further improve the legislation on the protection of consumer rights and interests, and to be forward-looking in legislation, so as to be able to respond to new situations and new problems in a timely manner. On the other hand, in terms of legislative policy tendencies and relief methods, it is necessary to further tilt towards protecting the interests of the weak - consumers, so that consumers can use various relief methods to promptly safeguard their legitimate rights and interests
I hope you can adopt it , found it with great difficulty.