Study On Fraud In The Revised Law Of The PRC On The Protection Of Consumers' Rights And Interests

According to Section 1,Article 55 of the Law of the People's Republic of China on the Protection of Consumer Rights and Interests(Amended in 2013)(hereinafter referred to as the “Consumer Protection Law”),though there requires punitive damages for business operator's fraud in providing goods or services,the specific criteria for identifying "fraud" is not specified.Whether or not having the same constitutive elements as civil fraud,namely: objective fraud,subjective intention,and dual causality,is still an argument point in both theoretical and practical aspects.To study this core issue,the theoretical controversy and practical ambiguity of the three constitutive elements were studied in this paper to figure out their specific connotation and identification method,and demonstrate the feasibility of using the three constitutive elements of civil fraud as the criteria of identifying fraud of the "Consumer Protection Law" and study the particularity of such identification for this law.The paper is mainly composed of six parts.The part of introduction described relative background and study value of fraud identification in “Customer Protection Law”,summarized the main literature issues,and introduced the main research methods,demonstration ideas and structure of this paper.The second part mainly discussed the private law nature of the "ConsumerProtection Law",the constitutive elements of civil fraud,and the relative theoretical arguments of fraud identification."Consistency of meaning" demonstrates that,as the lex specialis to General Rules of the Civil Law of the People's Republic of China,provisions of lex generalis should be applicable to the “Consumer Protection Law” if there lacks specific provisions in lex specialis;the “Special Hermeneutics”emphasizes the particularity of the "Consumer Protection Law.The third part talked about the objective elements for identifying the negative fraud of business operator,focusing on the content and application scope of the informing obligation.The criteria to identify whether the business operator violates the informing obligation or not,is still subject to the basic principles and rules of general civil laws like the Contract Law.The special provisions of the “Consumer Protection Law” on the informing obligation are essentially no more than specific interpretations to special types of contracts.The particularity is represented in: 1.the scope of application cannot exclude obligation violation situations during contract performance process;2.Burden of Proof by defendant should be recognized in necessary procedure.The fourth part studied the subjective elements for identifying fraud of business operator,and demonstrated the “deliberate civil fraud theory” and whether negligence should be applied to fraud in the “Consumer Protection Law”.The “deliberate civil fraud theory” takes the party autonomy as its basis while punitive damages focusing more on investigation about the subjective and malignant nature of actor's behaviors.In order to ensure substantive fairness,the subjective elements for identifying "fraud" of the "Consumer Protection Law" should still be limited within the "deliberate" category.And as for the negligence behavior of business operator,the common civil relief should be taken to make up damages and losses of consumers.In practice,presumption would be adopted to reduce the burden of proof on consumers.The fifth part demonstrated the causality argumentation for identifying fraud of business operator,focusing on the act of knowing and buying fake commodities and whether the punitive damages for fraud can be applied for “Consumer Protection Law” during the contract performance.In practice,those who know and buy fakecommodities but not fall into mistakes due to fraud are mostly not identified to have claims rights on punitive damages.According to the functionalist approach,the behaviors of knowing and buying fake commodities should be divided into different types for handling,which is still arguably;In view of the culpability of good faith principle,and the independence of punitive damages,the identification of fraud of business operators during contract performance process should ignore causal argument,and make clear about whether the business operator should be liable for triple times of damage according to the objective and subjective elements.Moreover,in legal effects,it should be compatible to the liabilities of breach of contract.In this case,the applicable scope of “fraud” in traditional civil laws is extended to some certain extent.The part of conclusion stated the position of this paper,that is: admit the reasonableness of the “Special Hermeneutics” theory.On the one hand,civil fraud should be taken as the theoretical framework for identifying fraud of the "Consumer Protection Law",thereby minimizing the phenomenon of "different judgments for a same type of cases";on the other hand,appropriate protection to consumers should be maintained in identifying constitutive elements,thus to show the independence of punitive damages and its powerful effect in practice.