Research On The Judicial Application Of The Act Of "Buy Fake Products On Purpose"

With the rapid development of modern commodity economy,the problem of consumption has become increasingly prominent and acute.In order to protect consumers in a weak position and maintain a healthy economic order,the state has taken more and more direct interventions in the consumption relationship.In China,a series of laws and regulations based on the consumer rights protection law and the food safety law provide severe legal liability for the acts of infringing the rights and interests of consumers,among which the punitive compensation system is one.This system can not only deter the dishonest operation of the operators,but also encourage the consumers to take the initiative to protect their rights.At the same time,it is also one of the main reasons why the consumers who know and buy fake are always active in protecting their rights.The massive influx of cases of "buy fake products on purpose" has brought severe tests to theoretical research and judicial practice.Scholars have great disputes on the issues related to "buy fake products on purpose",and the courts seem to have lost their feet in the trial of such cases,and their judgments are quite chaotic.However,the relevant laws and judicial interpretations still fail to make clear provisions on the controversial issues related to "buy fake products on purpose".This paper first summarizes 1000 judicial documents drawn from judicial practice to understand the judicial status quo of the act of "buy fake products on purpose",and then sums up the controversial issues of the act of "buy fake products on purpose".On this basis,it further discusses the causes of these problems.Finally,from the aspects of theory,legislation and judicial interpretation,some suggestions are put forward on how to solve the judicial application of "buy fake products on purpose".In short,this paper is divided into three parts,the specific content is as follows.First of all,from the perspective of a thousand judicial documents,this paper generalizes and analyzes the judicial status quo and existing problems of "buy fake products on purpose".This paper is divided into three parts.In the first part,from the perspective of case retrieval,each court has its own opinions on the relevant issues of "buy fake products on purpose",and the judgment standard is quite confused.In the second part,the main opinions of each court are summarized.In the third part,the judicial issues in the case of "buy fake products on purpose" are elaborated,and thereasons for the judgment of each court are analyzed It can be seen that the disputes about the cases of "buy fake products on purpose" mainly involve the identification of the "buy fake products on purpose",how to identify the "fraud" of the operators in the punitive compensation system,the conflict between the protection of "buy fake products on purpose" and the observance of the principle of good faith,and the abuse of lawsuits caused by the increase of "buy fake products on purpose" cases.Secondly,on the basis of the above,this paper makes a detailed analysis of the causes of the judicial problems of "buy fake products on purpose" from three aspects of theory,legislation and judicial interpretation.The author believes that the main reasons for this judicial confusion are as follows: there are two theoretical problems: one is the deep-rooted influence of legal dogmatism on Chinese scholars and judges,who are deeply influenced by the thought of legal dogmatism,and solve the relevant disputes of "buy fake products on purpose" with the inherent traditional concept,without taking into account the social effects;the other is that legal dogmatism has a deep-rooted influence on Chinese scholars and judges It is that "buy fake products on purpose" and "making and selling fake" have certain social harmfulness.It is really difficult to make a choice between two things that are harmful to the society.In terms of legislation,it is difficult to define clearly whether the "buyer who knows the fake and buys the fake" has the identity of consumer according to the relevant provisions of the current legislation.The unclear definition of the identity directly leads to different degrees of differences in theoretical research and judicial practice.As for the abuse of lawsuits caused by the influx of "buy fake products on purpose" cases,the relevant laws in China are lack of effectiveness rule and regulation.In the aspect of judicial interpretation,the imperfection and untimely of relevant judicial interpretation directly lead to different definitions of the protected scope of "buy fake products on purpose" in the field of food and drug;in the field of non food and drug,whether the constituent elements of operator's "fraud" in punitive compensation system can be advanced according to the relevant interpretation in civil law It is also controversial and inconclusive.Finally,according to the causes of judicial problems,this paper puts forward the views and opinions.Specifically,some suggestions are put forward from the following aspects: first,further strengthen the research on the integration of relevant theories,strengthen the integration of law and economics,law and sociology,and pay more attention to the legal and social effects brought by the application of punitive compensation system to those who "buy fake products onpurpose".The second is to clarify the legislation,to clarify the definition of consumers as soon as possible,to affirm the identity of consumers who know the fake and buy the fake,so as to reduce the relevant disputes in the theoretical and practical circles;to further clarify the standards of "fraud",to clarify the elements of "fraud" in various fields;to strengthen the regulation of abuse of litigation right from the establishment of litigation review permission mechanism and fine mechanism.The third is to improve the relevant judicial interpretation in time,and clarify the scope of the protected "buy fake products on purpose" in the field of food and drug and the attitude of "fraud" outside the field of food and drug,so as to ensure the accurate application of the law.Fourth,we should strengthen the guidance of cases,guide and standardize new problems and situations through timely issuance of guidance cases,so as to ensure "treating like cases alike".