If consumers find food problems, they can directly complain to the merchants, report to the functional departments, or break the news to the relevant media. If the evidence you have is conclusive and has a legal basis, and the complaint is fruitless, you can directly take legal channels to defend your rights. Article 8 of the Food Safety Law stipulates that news media should publicize food safety laws and regulations, food safety standards and knowledge for public welfare, and supervise acts in violation of this Law by public opinion. Article 10 stipulates that any organization or individual has the right to report any violation of this Law in food production and operation, to obtain food safety information from relevant departments, and to put forward opinions and suggestions on food safety supervision and management.
At present, there are many laws and regulations in China to support consumers to claim compensation according to law. One is the consumer rights protection law, which is generally applicable to false advertisements and fraudulent business practices; The other is the Food Safety Law, which mainly aims at the statement that food, health food and medicine are unsafe; And tort liability law. Article 2 of the Tort Liability Law stipulates that those who infringe upon civil rights and interests shall bear tort liability in accordance with this Law. The civil rights and interests mentioned in this Law include personal rights and property rights such as the right to life, health, name, reputation, honor, portrait, privacy, marital autonomy, guardianship, ownership, usufructuary right, security right, copyright, patent right, trademark exclusive right, discovery right, stock right and inheritance right. Article 3 stipulates that the infringed party has the right to request the infringer to bear tort liability.
So, how to determine whether the seller has a "knowing" fault? Generally speaking, it can be judged from two aspects.
First, whether the seller establishes the inspection record of incoming goods according to law, and whether it fulfills the inspection obligation of incoming goods in the process of incoming goods. The Food Safety Law stipulates that food business operators shall establish food incoming inspection records, and sellers shall "truthfully record the name, specifications, quantity, production batch number, shelf life, supplier's name and contact information, purchase date, etc.".
The second is whether the seller has fulfilled the duty of care in the sales process. In the process of sales, the seller should also "store food according to the requirements of ensuring food safety, check the stored food regularly, and clean up the food that has deteriorated or exceeded the shelf life in time".
For example, in the second case, the supermarket failed to provide the court with the inspection records of incoming goods according to the provisions of the Food Safety Law, nor could it prove that it had fulfilled its duty of care and should bear the burden of proof.
Case 1
Buying "the best fragrant rice" v. supermarket was sentenced to three times compensation.
A consumer in Xi, Shaanxi Province bought rice with the words "the most delicious fragrant rice" printed on its outer packaging in a supermarket. Consumers think that the propaganda language is suspected of misleading consumption and fraud, and complain to the supermarket. The court ruled in the first instance that the supermarket returned the purchase price and gave compensation of three times the purchase price. It is reported that this judgment is the first judicial judgment executed according to Article 55 of the new Consumer Protection Law since it was implemented on March 5, 20 14.
Mr. Sun, a consumer of Xi 'an, said that when he bought rice in a supermarket in An, he found that a kind of "royal fragrant rice" he had originally purchased turned into "the best fragrant rice" when the packaging was basically unchanged and the price and grade were exactly the same. Mr. Sun thinks that the word "best" misleads consumers and makes them think that this kind of rice is of extremely high quality. Mr. Sun's access to relevant information shows that all kinds of rice in China are divided into four grades, and there is no "best" grading. Mr. Sun believes that "the best fragrant rice" is an "absolute term", which violates the relevant provisions of the Advertising Law.
In order to protect his legitimate rights and interests, on June 9, 2065438, Mr. Sun sued the supermarket in beilin district People's Court, demanding a refund of 179.6 yuan and triple compensation.
On July 22nd, Xi 'an beilin district People's Court heard the case. The focus of the dispute in this case is whether there is fraud in the sale of "gourmet fragrant rice" in supermarkets, and whether it should directly bear the responsibility of returning the purchase price and corresponding compensation.
Supermarkets argue that they are retail enterprises, which directly sell fragrant rice brands after purchasing from suppliers. The commodity is a qualified product produced by a legitimate enterprise, and it has fulfilled the obligation of examination within a reasonable range. In the process of supermarket sales, there is no deliberate concealment or fabrication of facts, and there is no fraud.
The beilin district People's Court held that this fragrant rice sold in supermarkets was marked with the words "best fragrant rice" on the package and "best fragrant rice" on the receipt, and "best fragrant rice" was an absolute term, which violated relevant laws and regulations. Supermarkets do not strictly examine the goods they sell, misleading consumers, which is fraudulent and should bear corresponding responsibilities. In addition, according to the provisions of Article 40 of the Law on the Protection of Consumer Rights and Interests, the supermarket can claim compensation from producers or other sellers after taking responsibility. On September 2065438+2004 1 day, the court of first instance ruled that the supermarket should refund the consumer Mr. Sun's rice payment 179.6 yuan and pay Mr. Sun 538.80 yuan as compensation for three times the payment. Article 55 of the Law on the Protection of Consumers' Rights and Interests stipulates that if an operator commits fraud in providing goods or services, it shall increase the compensation for the losses it has suffered according to the requirements of consumers, and the amount of compensation shall be three times the price of the goods purchased by consumers or the cost of receiving services; If the increased amount of compensation is less than that of 500 yuan, it shall be 500 yuan. Where there are other provisions in the law, those provisions shall prevail.
The general principle of civil damage compensation is the principle of flat filling, that is, how much damage compensation. However, in real life, some operators maliciously harm consumers' rights and interests through fraud and other fraudulent acts, and the principle of filling in the flat is difficult to punish these illegal operators and can not compensate consumers' actual losses well. The new Law on the Protection of Consumers' Rights and Interests has raised the standard of punitive damages, which has added great impetus to encourage consumers to fight against fraudulent acts of operators.
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Overdue 10 days, 10 times compensation, large supermarkets were severely punished for selling expired food.
Yin bought a box of expired food in a supermarket in Hanyang, Wuhan, and sued the supermarket to the court for 10 times compensation.
On June 7, 20 13, Yin bought a box of Taohuaji Ejiao cakes in a supermarket in Hanyang, Wuhan, at a price of 25 1 yuan. After leaving the supermarket, Yin found that the production date of Taohuaji Ejiao cake she bought was 2065438+August 7, 2002, and the shelf life was 10 month. This box of food has expired 10 days, and he asked the supermarket to return it, but the two sides failed to negotiate.
On the same day, Yin complained to Hanyang Branch of Wuhan Administration for Industry and Commerce, demanding a return, and demanded compensation of 10 times according to the relevant provisions of the Food Safety Law, but the mediation failed.
In this case, Yin sued the court.
The court of first instance held that whether the Taohuaji Ejiao cake sued by Yin was a commodity sold in the supermarket at that time was the main focus of the dispute in this case. Yin provided the goods in kind and the shopping invoice, but the supermarket did not submit the evidence of the purchase in the same period, confirming that the Ejiao cake it sold was not the same batch of products as the Ejiao cake provided by Yin, and should bear the responsibility of failing to prove it. And as a large supermarket, the supermarket should have a complete video surveillance system, which can help prove the authenticity of Yin's food purchase behavior, but the supermarket also failed to provide it. Although the supermarket can prove that the registered delivery unit of the commodity is guanxian Yimin, it cannot prove that the supermarket has not purchased the commodity. Therefore, it is determined that the supermarket sells expired food. According to the Food Safety Law, it was decided that the supermarket would refund Yin 25 1 yuan, compensate Yin 25 10 times 10 yuan, and compensate Yin 500 yuan for transportation expenses.
The supermarket refused to accept the appeal, saying that the products it sold only passed the shelf life and did not violate food safety standards. Whether the products have quality problems should be identified by relevant professional departments, and Yin did not provide any evidence to prove that the products involved did not meet food safety standards; Moreover, the seller was not intentional subjectively, but there were cases where the expired goods were not sorted out in time, which was only a fault at most and did not cause actual damage to Yin. Therefore, Yin should not be paid 10 times compensation according to the Food Safety Law.
The court of second instance rejected his appeal and upheld the original judgment, knowing that the food was sold after its expiration, and should be fined 10 times. Article 96 of China's Food Safety Law stipulates that consumers who produce food that does not meet the food safety standards or sell food that they know does not meet the food safety standards may demand compensation from the producers or sellers for 10 times the price.
Compared with the principle of fraud compensation determined by the Consumer Protection Law, this provision of the Food Safety Law reflects the punishment for the production and sale of food that does not meet the food safety standards. However, it is precisely because of the severe punishment of 10 times compensation that the food safety law stipulates a subjective requirement for the seller to pay 10 times compensation: knowing that consumers have the right to ask the seller to pay 10 times compensation only when the seller knows that the food does not meet the safety standards.