| China's "Food Safety Law" stipulates the "Ten times compensation" punitive damages system,and the professional anti-counterfeiting behaviors are endless because of it.In particular,the number of professional anti-counterfeiting behaviors in the food industry is increasing with great diversity everyday.As a food legal consultant majoring in FDA,the author deals with too many cases caused by professional anti-counterfeiting during daily work.The outstanding features of this type of case are as following: 1.The purchaser has professional knowledge and purchases goods for the purpose of making profits;2.The actual damage has not occurred,and the court applies punitive damages broadly.Therefore,the author thinks about two questions: First,how to define "consumer",whether professional counterfeit hunter should be excluded;Second,whether the application of punitive damages should be based on the actual damage? This article focuses on the above two issues.This article is divided into three parts:The first chapter of this paper summarizes the common problems through the studying on the three types of practical cases.The first case is about the food beyond valid date.This case is quoted from the guidance case of the Supreme Court.In this case,the plaintiff Sun Yinshan knew the truth that the product didn't have the valid period before he purchased it,and claimcompensation ten times of the original price.The plaintiff in the case shall be defined as who “knowing it is fake and buying”,at the same time no damages occurred.The court supported the plaintiff's claim and consented to his opinions that the plaintiff did not transfer the purchased goods to the re-sale operation,the plaintiff was “for the needs of daily consumption”,so the plaintiff shall be recognized as a consumer,and the behavior of “knowing and buying the fakes” is not the point of the purchase behavior.In this case,the court did not consider about the “damage consequences”.It believed that as long as the seller knows the food that is to be inconsistent with safety standards,the consumer can claim damages and the seller should pay ten times of the original price of the food.The court did not clarify the relationship between the right to claiming compensation for damages and the right for punitive damages.The second case is about problematic label on food packaging which is picked by the author during the legal practice.In this case,the plaintiff purchased the product from the defendant,then he made a lawsuit with the reason that the product sold by the defendant was not marked according to the provisions of the“Announcement on Approving Maca Powder as a New Resource Food”,and the court ordered the defendant to return the money and pay compensation ten times of the price.In this case,the plaintiff “knows and buy fake” and has the professional knowledge of the relevant food label regulations,and the case without any damages.The third type of case is those series adding “drugs” into foods.Based on the spread of the case and the industry status of the producers involved in the case,the series of cases have considerable influence in the FDA.Kangmei Pharmaceutical Co.,Ltd.has produced a substitute tea(general food),the product name: Ju Huang Tea,the ingredients contain plumula nelambinis,since the product enters the market,many purchasers think the one of the ingredients of "Ju Huang Tea" called "Lian Zi Xin" was belonged to medicine plumula nelambinis.It was generally considered that "Ju Huang Tea" violated the provisions of Article 38 of the Food Safety Law,and added drugs to the food,so they demanded a refund and claimed a ten-fold compensation.With “Ju Huang Tea” as the keyword,the author searched and screened the websiteChinese referee documents online,and retrieved a total of 99 cases.The main features of the series were: First,all the consequences of these have no actual damage;Second,in these 99 cases there are 30 different plaintiffs,16 of which purchased more than 2times(including),representing 53.33%;Third.,The series is highly professional,the plaintiff has mastered the food standards related to the products involved,and uses the contradiction between different standards in litigation.In summary,the author puts forward two issues that are mainly discussed in this paper.First,is the professional counterfeit hunter a really consumer? Second,what are the constituent elements of punitive damages?The second chapter of this paper focuses on the subject of punitive damages.This chapter is divided into two sections.The first section is about the construction of consumer concept.There is no clear concept of "consumer" in our country's legislation.The academic community generally believes that the core of defining the concept of consumers is "life consumption".How to determine that it is "purchasing for the needs of life consumption",the subjective and objective unity represented by professor Liang Huixing argues that the subjective purpose of the buyer should be emphasized,and that the subjective purpose should be presumed by the "rule of thumb." The objective theory represented by Professor Wang Liming believes that judging whether "life consumption" should not consider the purpose and motive of the purchaser,as long as the agent purchases the goods and accepts the service,and does not transfer the goods or services again,it can be regarded as consumption.Professor Xu Jianyu advocates examining the objective behavior of the purchaser.As long as the purchased goods or services are not used by the purchaser as production materials,they can be supposed to have the purpose of life consumption.This section also introduces the concept of consumers in German civil law.The German consumer concept has two main elements.One is the subjective element.The German civil law clearly stipulates that consumers can only be natural persons,exclude legal persons and other organizations.Second,the elements of behavioral purposes.German civil law determines the behavioral purpose of consumers by means of reverse exclusion.The author believes that China should study the Germanconsumer concept,(considering)adopt the model of behavioral subject plus behavioral purpose,and introduce “independent professional activities” to construct the concept of consumers,defining consumers as: consumers mean that a natural person who neither has the profit-making activities for the purpose,nor purchases goods or receives services for the purpose of independent professional activities.The second section of this chapter mainly discusses the specialization of the concept of consumers to define the identity attributes of professional counterfeit hunter.China's judicial policy has undergone three stages of change in its attitude of“knowing about buying fakes”: First,the vague stage,“knowing the fake and buying fake” behavior is not considered in the introduction of the punitive damages system in1993 in China's legislation.In the case of the "Wang Hai Phenomenon",the legal practice community did not have a unified understanding of "knowing and buying fake",and it is also controversial in theory;second,the phase inclined to supporting,with the introduction of the highest court on December 23,2013.The Provisions of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Food and Drug Disputes(herein after referred to as the "Food and Drug Regulations")is a sign,and the judicial attitude has changed,tending to support "knowing and buying fake";With the increasing number of anti-counterfeit behaviors,the extremely bad social impact,the change of the attitude of the China highest court,and the gradual restriction of profit-making anti-counterfeiting behavior,unfortunately based on special policy considerations,in the field of food and medicine,the highest court still support the anti-counterfeiting behavior.In the academic circles,as to the question that whether the consumers who know the "fake and buy fake" are consumers has changed.From the stage of a simply affirmative or negative theory,there is a two-side view slowly developed,the scholars who hold the two-side view are based on the observation of the behavior of "seeking fake and buying".The difference between professional anti-counterfeiting and general “kick-and-fake” is proposed,and then the professional anti-counterfeiting is not a consumer.The author believes that we should study the concept of German consumers and introduce "independent professional activities".The behavior of "knowing fakes and buying" nolonger simply depends on the evaluation of the buyer's subjective motives,but begins to turn to observe the behavior characteristics of buyers and engage the concept of“ independent professional behavior”.Professional counterfeit hunter of professional activities cannot be identified as consumers.The third chapter of this paper discusses the scope of punitive damages application.The nature of the liability stipulated in Article 148 of the Food Safety Law is the tort liability.The key to determining the existence of an infringement is to determine the food safety standards to which the product applies.However,in practice,the standard forms are diverse,and the same food,due to different standards,will have different qualitative characteristics,which brings certain difficulties to the judicial trial,and is also the place where professional counterfeiters often take their moves.Therefore,whether the judgment of infringement should be make would be strictly refer to the word “safety” which has its own meaning in the food safety law.And the word “safety ”should never be understood only by its common meaning which would be introduced a simple and superficial judgment.This chapter also discusses the non-application of punitive damages.The author believes that as long as the "no harm to food safety" condition is met,the "food labeling problem" can be excluded from the application of punitive damages.The author believes that the semantic interpretation of the "clear" of "knowing" is clear,so it should be considered as "knowing",that is,the operator can only apply punitive damages only if he is subjective and intentional.In the four Chapter,the author focuses on the theory of “damage consequences”,which is mainly discussed around the doctrine,comparative law,and judicial interpretation.The premise for Chinese academic circles applying punitive damages to the "damage consequences" mainly includes affirmative and negative statements.It is affirmed that civil liability includes compensatory compensation and punitive damages.These two have same functions,requirements and effects,but they are inseparable.The punitive damages claim must be based on the existence of compensatory damages.The “damage consequences” are the requirements for the application of punitive damages.The negative theory holds that the right for punitivedamage claim and the right for compensatory compensation claim are independent of each other,and the punitive damage claim right is not required to be based on“damage”.From the view of the comparative law,the United States which has the most perfect punitive damages system worldwide and Taiwan district,in their civil law system,they both advocates that punitive damages have subordination,it must be based on the damage,the “damage consequences” is the premise for the punitive damage system.Judging from the judicial interpretation,Article 15 of the Food and Drug Regulations cannot directly deduce that consumers claim of the ten-fold price compensation does not need the premise of “damage”.The original text of Article 148 of the Food Safety Law can only derive this conclusion: after satisfying certain conditions,consumers can also claim punitive damages on the basis of general tort damages,and cannot deduce that punitive damages are independent from general tort damages.In summary,the author believes that the application of punitive damages must be based on damage.The conclusion of this paper is that the people who “knowing and buying fake”in the food field have the characteristics of specialization and professionalism.We should learn from the legislative experience of “independent professional activities”in the German consumer concept,and define the concept of consumers,so that the professional counterfeit hunter cannot be define as consumers.The subject elements of punitive damages is unsuitable.By discussing the scope of application of punitive damages,the issue of packaging labels that do not affect food safety and the negligence of the operator can be excluded from the application of punitive damages.In addition,by judging the nature of the tort liability of punitive damages in the Food Safety Law,and combining the relative theory and experience in comparative law,the author considers that the damage consequences are necessary conditions for the application of punitive damages. |
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