Research On The Application Of Punitive Damages In Buying Fake On Purpose

For the protection of consumers,China has introduced punitive damages clauses,but it also causes the rise of buying fake on purpose on purpose.During the past two decades,legislation and judicial practice have repeatedly tried to characterize and regulate buying fake on purpose,but no unified view has yet been formed.The "Regulations on the Implementation of the Protection of Rights and Interests of Consumers Law(Draft for Solicitation of Comments)" in 2016 will exclude "for profit" purpose from the scope of consumers to exclude the protection of buying fake on purpose.In May 2017,the Supreme People's Court also stated in its response that it would consider restricting buying fake on purpose to the food and pharmaceutical fields,and once again expressed its opposition to buying fake on purpose.However,the above two documents have not come into effect or have supporting regulations,and judicial opinions on buying fake on purpose are still different.In April 2019,the Legal Daily also published two articles supporting the right to request punitive damages for buying fake on purpose.There can be seen that there are many problems in the application of punitive compensation in the case of buying fake on purpose,which need to be studied and clarified.This article starts with the introduction of punitive damages and the development of buying fake on purpose.Through the analysis of judicial cases in the past year,it summarizes the common reasons for and against punitive damages.It analyzes the value of buying fake on purpose from the functional analysis of punitive damages,and finally put forward suggestions for the settlement of punitive damages for buying fake on purpose.The first chapter of this article introduces the background and the changes in judicial practice of the act of buying fake on purpose.For the reasons that China 's socialist market economic order has not yet been established,limited administrative supervision and law enforcement capabilities,and consumers' weak status,the "the Protection of Rights and Interests of Consumers Law of 1993" in China broke the principle of equality of rights and obligations in civil law,introduced punitive damages provisions with reference to the common law system and continued to develop.In 1995,there was an incident of buying fake on purpose by Wang Hai,and then more than two decades of discussions on buying fake on purposes began.Because buying fake on purposes is not a legal term,it should be defined as "purchasing for the purpose of claims",which does not cause loss of personal and other property.There have been several changes in the attitude of buying fake on purpose in judicial practice.The reasons are the vagueness and conflict of legal provisions,the conflict between the principle of consumer protection and the principle of civil good faith,and different understandings of punitive damages.The second chapter of this article explores the situation and main disputes of punitive damages for buying fake on purpose in judicial practice.Within one year,an analysis of 343 judgment documents about buying fake on purpose was conducted.It was found that the cases of buying fake on purpose cases were mainly based on first trial,the cases value were low,and the focus was on food labels and expired food.Through further collating the reasons for the judgment,three common reasons for support are summarized: support on the grounds that they are not sufficient to prove that they are buying fakes,support on the basis of Article 3 of the "Provisions of the Supreme People's Court on Certain Issues Concerning the Application of Laws in Hearing Cases Involving Disputes over Foods and Drugs",and support by the recognition of buying fakes as consumers;and three common reasons for objection: objection on the grounds that the profitability of buying fake on purpose violates the principle of good faith,objection on the grounds of violating food safety standards without affecting food safety,and dissatisfaction Fraud constitution.By analyzing and researching the reasons for support and objection,it is concluded that the main disputes in the cases of buying fake on purpose focus on the identification of buying fake on purpose and the identification of consumers,the relationship between punitive damages and losses,the relationship of food safety standards and food safety,and identification of operator fraud.The third chapter is the theoretical justification of punitive damages for buying fake on purpose.First,by analysis of the limitation of existing theories used to identifying buying fake on purpose and consumer,it reflects the necessity and significance of analyzing buying fakes on purpose from the perspective of the function and goal of punitive damages in China.Since China's punitive damages are very different from the punitive damages provisions of the common law system,we must first clarify the functions of China's punitive damages.Traditionally,the AngloAmerican law system of punitive damages has four functions: compensation,sanction,prevention,and incentive.Through the analysis of punitive damages regulations in China,it is found that compensation and incentive are the main functions of punitive damages in China.Punitive damages in China can be defined as the reward system in economic law.From this perspective,supporting the buying fake on purpose is conducive to giving full application to the incentive function of punitive damages,realizing the protection of consumer rights and interests,and meeting the legislative purpose of maintaining market order.The fourth chapter of this article is to make recommendations for the application of punitive damages for buying fake on purposes.Consumer status is a prerequisite for applying punitive damages,so the first problem to solve is that those who buy fake goods have consumer status.Secondly,we must resolve the disputes in the application of punitive damages and define the "loss" in the punitive damages.It is concluded that the "loss" in the "Protection of Rights and Interests of Consumers Law" is a contract loss,and the "Loss" in "Food Safety Law" is the conclusion of loss in tort.By analyzing the purpose of incentives for punitive damages,it is concluded that punitive damages are not based on losses.Distinguishing the boundaries between food safety and food safety standards is also an issue that needs to be addressed in practice.Legislation excludes labels and instructions that do not affect food safety from the scope of application but does not further specify them,making opinions on labels and instructions that do not affect food safety in practice are divergent.Therefore,the contents of labels and instructions that do not affect food safety should be clarified and a matching administrative reporting reward system should be refined.Operator fraud is a problem that has always been controversial.It should be clear that the constituent elements of operator fraud are that the operator has intentional or gross negligence,and has objectively implemented acts of notifying false conditions or concealing the real situation.For the proof of fraud,the operator's subjective status should be determined using the principle of presumption of fault,and the objective behavior should be determined based on the general consumer's level of recognition.