On Operator Fraud And Its Private Law Effects

Article 55 of China's Consumer Protection Law provides for punitive damages regulations,which are caused by operator fraud.About the concept of operator fraud,there are two opposing views.One thinks that operator fraud and civil fraud are different,but the other one confirms that the two are the same.However,neither of these two doctrines identify the nature of operator fraud from the private law fraud.Private law fraud is divided into generalized fraud and narrow fraud.The nature of operator fraud is generalized fraud.The application of operator fraud also needs to be improved.In dealing with the contractual relationship,the court did not follow the contract law.At the same time,the court confused the two different situations,concluding the contract stage and performing the contract phase.In our country's current legislation,only the fraud that occurred during the contracting stage may lead to the revocation of the legal acts.Only under the theory of property acts,contract performance behavior may lead to changes in the effectiveness of legal acts.Therefore,the theory of real right behavior is of great theoretical and practical significance for the study of operator fraud.When dealing with infringements,Consumer Protection Law is too harsh on the burden of proof for consumers.The subjective determination of the operator should be limited to deliberately excluding negligence,which should be judged by objective criteria and by way of presumption.It can be seen that the correct application of operator fraud will inevitably require a correct understanding of the relationship between the effects of these private laws.In addition to generating punitive liability,operator fraud can also result in contracting fault liability,liability for breach of contract and tort liability.Punitive liability is applicable independently of other responsibilities and is a converging relationship with others.The relationship of contracting fault liability and tort liability is also an aggregation one.Contracting fault liability and liability for breach of contract cannot be applied at the same time.The relationship between liability for breach of contract and tort liability is a concurrence one.However,when it comes to infringement of inherent benefits,the relationship between liability for breach of contract and tort liability may be an aggregation one.