The Legal Reconstruction Of Professional Anti-counterfeiting

Professional anti-counterfeiting is a complex social phenomenon triggered by law and involving social management,economic balance and other aspects.Since the implementation of the Law of Protection of Consumer Rights and Interests,professional anti-counterfeiters have appeared in front of the public and become a new label.Professional anti-counterfeiters use the multiple compensation rules granted by the law to learn about buying fakes in the market in order to obtain high profits,which has caused controversy in various circles.In practice,the handling rules of law enforcement agencies and courts across the country are also very different.Some of them support the plaintiffs "triple compensation" or "ten times compensation" in accordance with the provisions of the Law of Protection of Consumer Rights and Interests or the Food Safety Law,and some have been held criminally responsible for the crime of extortion,and there is alienation in professional anti-counterfeiting Propensity.The three characteristics of professional anti-counterfeiting means are professionalization,team programming and purpose-based profit.At present,our overall legal environment is conducive to both professional and anti-counterfeiting aspects,but also has disadvantages.Six related laws and regulations,such as the Law of Protection of Consumer Rights,provide great possibilities for professional anti-counterfeiting.By counting the referee documents with the keyword"professional anti-counterfeiting" and sorting out typical cases of professional anti-counterfeiting from January 1,2008 to the present,we can find that there is a continuous and unstable state in general.Controversy continues.In fact,the positive and negative effects of professional anti-counterfeiting are obvious.For the negative effects of professional anti-counterfeiting,it should be reconstructed from the three aspects of professional anti-counterfeiting status,professional compensation compensation system and professional anti-counterfeiting path based on the consideration of public interest.It is difficult to judge whether it belongs to "consumer" by determining whether it belongs to "living consumption" according to the general rules on the dispute over the status of professional anti-counterfeiters.Professional anti-counterfeiters cannot be easily defined as extortion,they are a special kind of consumer.In the current environment,it is very necessary to identify professional counterfeiters as consumers,and at the same time,the concept of consumers needs to be recreated to remove the trouble of "life consumption".The punitive compensation system introduced by professional anti-counterfeiting,while combating counterfeiting and selling fakes,gives professional anti-counterfeiters room for profit,but its legitimacy is controversial;Furthermore,fraud is a prerequisite for the application of punitive compensation in many cases However,there is a clear conflict between people's understanding of fraud behavior.This requires a reengineering of the compensation system for professional anti-counterfeiting.Based on the jurisprudence of searching for compensatory compensation system and punitive compensation system,distinguish between "fraud" and "fraud behavior" and get rid of the impact of the concept of "fraud" in the Civil Law and on "fraud behavior" in the Law of Protection of Consumer Rights.At the same time,a distinction is made between substantive business fraud and promotional business fraud,and punitive damages are not applicable to promotional fraud.For anti-counterfeiting activities in the food sector,it is recommended to consider applying punitive damages first.In order to quell the legitimate disputes of the punitive compensation system,the public welfare distribution mechanism of punitive compensation should be established for professional anti-counterfeiting.The path of professional anti-counterfeiting is divided into judicial path and public enforcement path.Existing professional anti-counterfeiting relies too much on the judicial path.Public enforcement agencies have set up many obstacles to professional anti-counterfeiting,and the public enforcement path has not played its due value.We should reinvent the path of professional anti-counterfeiting,give play to the role of public enforcement agencies in guiding professional anti-counterfeiting,implement a parallel reporting mode of whistleblowing system and punitive compensation,and support public incentives.