Professional claimant： crowding administrative and judicial resources to ＂protect rights＂ and become ＂infringement＂
Recently, the "Symposium on Occupational Claims Behavior" attended by market supervision departments, China Consumers Association and business representatives was held in Beijing.
It is understood that on May 9, the Central Committee of the Communist Party of China and the State Council issued the "Opinions on Deepening Reform and Strengthening Food Safety Work", proposing that "malicious reporting of illegal profits should be severely cracked down according to law"; On August 8th, the General Office of the State Council issued the Guiding Opinions on Promoting the Healthy Development of Platform Economy, demanding to effectively protect the legitimate rights and interests of participants in the platform economy and crack down on extortion in the name of "counterfeiting".
Relevant data show that in recent years, the number of malicious complaints and reports of "professional claims" initiated in the name of "counterfeiting" and "safeguarding rights" has exceeded 1 million every year, and "professional claims" have gradually shown the characteristics and trends of gangs, specialization, scale and stylization, which not only seriously troubled the normal production and operation order of enterprises and affected the business environment, but also abused the rights of complaints and reports, information disclosure, reconsideration litigation and monitoring complaints.
Put pressure on malicious bad reviews
Threaten businesses to gain benefits.
In some e-commerce platforms, some professional claimants are active. They demand compensation from the merchants for some loopholes through the legal and platform compensation process, otherwise they will put pressure on them by leaving bad comments, reporting complaints and even litigation.
In the interview, the reporter of "Legal Daily" noticed a special merchant, whose goods were only sold to buyers with a favorable rate of over 99% on the e-commerce platform, and those buyers who often gave bad reviews were not sold.
Liu Feng (pseudonym), the owner of this shop, is also very helpless. "Who doesn’t want to make more money when opening an online shop? Setting a limit for your own store buyers is equivalent to losing many potential customers in vain. " Liu Feng told the reporter of Legal Daily.
But Liu Feng has no choice. "There are too many malicious bad reviews and complaints now. I am doing beauty purchasing, especially paying attention to the reputation of the store. If one or two malicious bad reviews indicate that it is not genuine, it will be difficult for me to sell my things again." Liu Feng said.
Liu Feng also told the "Legal Daily" reporter that some of these malicious bad reviews and complaints came from the malicious competition of peer competitors, and some came from professional claimants. They use the characteristics of beauty purchasing shops to pay attention to product evaluation, and threaten sellers to get high compensation by bad reviews.
"I once encountered such a situation, sold a box of masks that were less than 50 yuan, and finally lost 500 yuan. At that time, shortly after I started purchasing, the other party gave me a bad review, which directly indicated that things were fake, and then privately wrote me to ask for compensation, otherwise I would never delete the bad review. The days when the bad reviews were posted on the Internet seriously affected my sales, and even other customers wrote me privately asking for a refund. In desperation, I can only agree to his claim for compensation. " Liu Feng said.
In the subsequent interview, the reporter of Legal Daily found that there are still some shops that set buyer restrictions like Liu Feng, most of which are purchasing businesses. They pay great attention to the reputation of the shops, so they use this method to prevent malicious bad reviews. Many purchasing merchants believe that those special professional claimants have affected their normal operations.
"In fact, those who give bad reviews are rarely real consumers. Most of them still insist on bad reviews even if you take the initiative to communicate with him after sale or take the initiative to ask for identification, and even refuse to communicate directly. The purpose is to ask for money. I can guarantee that the things we sell are genuine. For real consumers, they will not be single-minded only for claims, so I will set limits for my buyers. " Liu Feng said.
Jia Liang (pseudonym), who has had two successful claims, told the reporter of Legal Daily: "There is nothing wrong with consumer claims. Although my purpose is for money, since I bought something from a merchant, I am also a consumer. "
"If the merchant sells fake goods or inferior products to deceive consumers, then it is also appropriate for me to claim compensation. If they don’t sell fakes, then I won’t have a chance to claim compensation. However, if you claim through some illegal means, it will definitely not work. " Jia Liang said.
Scientific and rational protection of rights and interests
Protecting rights is not a crime of infringement.
Regarding the current situation of professional claimants, Zhang Dezhi, director of the Complaints Department of China Consumers Association, believes that the law on the protection of consumers’ rights and interests is to protect consumers’ legitimate rights and interests, maintain social and economic order and promote the healthy development of the socialist market economy. Only when consumers need to buy or use goods or receive services for their daily consumption can they be protected by the Consumer Protection Law.
"Some professional claimants focus on commodity defects, buy in bulk, and even falsify evidence to extort money from merchants. Using malicious complaints and reports as a means of making profits has obviously deviated from the original intention of legislation and protecting consumers, but has left the real problem of consumer rights protection unresolved." Zhang Dezhi said.
Liu Junhai, a professor at the Law School of Renmin University of China, told the Legal Daily reporter that professional counterfeiting usually uses the relevant provisions in the Consumer Protection Law, that is, punitive damages. In the case of knowing, buy fake goods and then make a claim. Article 49 of the Consumer Protection Law, which came out in 1993, gave birth to the first case of suspected fake and fake claim in China, which is a milestone in the history of consumer protection in China.
"Punitive damages, also known as exemplary damages or retaliatory damages, refer to the compensation that the amount of compensation made by the court exceeds the actual amount of damages. Therefore, in addition to the general function of compensating losses, punitive damages also have their own unique functions, including six functions: severely punishing the faithless, fully compensating the victims, generously rewarding defenders, effectively warning the whole industry, comprehensively educating the public, and comforting the public’s psychological feelings." Liu Junhai said.
Liu Junhai believes that the punitive damages system punishes and shocks untrustworthy enterprises, mobilizes the enthusiasm of consumers to carry out legal struggles with some unscrupulous businesses, cultivates some consumers who are brave in defending their rights, safeguards consumers’ common interests and optimizes the consumption environment. However, there are some disputes about the meaning of the word "fraud" when the punitive damages system is applied in various places, especially whether there is fraud in the business operators when consumers buy fake goods.
According to Liu Junhai, the revised Consumer Protection Law in 2013 further inherited, adhered to and developed the punitive damages system. In addition, in order to further promote the rule of law concept of life first, safety first and honesty first, Article 55 of the new Consumer Law inherits and develops the "one plus one" punitive damages system, which greatly improves the punitive damages.
"It is worth noting that the ultimate goal of the punitive damages system is not to punish, but to nip in the bud. Those who are suspicious of buying fakes should also learn to defend their rights according to law, rationality, science and civilization, and don’t turn rights protection into infringement or even criminal acts, including the crime of allegedly damaging business reputation, and become so-called professional claimants. For example, if a fake buyer makes a huge claim to the court for sky-high price, but it is not supported by the court, the huge case acceptance fee paid in advance by the consumer will also be borne by the plaintiff himself. However, as long as the suspected fake buying and counterfeiting behavior is carried out within the legal framework, its legal role is accurately positioned, and the principle of rule of law and honesty and credit are strictly adhered to, it should be respected and affirmed by the society. " Liu Junhai said.
Actively crack down on professional claims
Consciously abide by the law and operate in good faith
As some professional claimants go astray, the relevant departments are also increasing their efforts to crack down on them.
In April this year, a post-90 s man in Longyan, Fujian used the absolute term "extreme words" defined by the advertising law to make malicious complaints against online shop sellers for extortion. He was sentenced to one year and eight months in prison by the court for extortion and fined 15,000 yuan. In May, the Jinshan District Court of Shanghai sentenced four members of a criminal gang in the name of professional counterfeiting to fixed-term imprisonment ranging from 1 year to 10 months for extortion. Not long ago, the Nanhu District Court of Jiaxing City, Zhejiang Province sentenced three people, including Tao Mou, who used "extreme words" malicious complaints on the Internet to extort money from businesses, ranging from 4 years and 6 months to 2 years and 6 months respectively, and fined them.
Professional claimants are not only active online, but also offline.
At noon on July 3, men Li and Duan had a dispute with the supermarket when shopping in a supermarket. Li and Duan claimed to have bought expired goods in the supermarket and demanded compensation from the supermarket.
According to the police officer who handled the case, "Li and Duan only bought a bag of kimchi. Because the validity period has passed, they asked the supermarket to compensate 1000 yuan. If they are not satisfied with the results, they will complain to the relevant departments or bring legal proceedings." The same situation appeared in two other supermarkets at noon, and it was still Li and Duan who bought the "expired" goods.
Qiu Baochang, head of the lawyers group of China Consumers Association, believes that if platform merchants can operate according to law and make claims within the legal framework, it will generally not affect the normal operation of merchants. If there are loopholes and flaws in business operations, or there are problems such as false propaganda, fake and shoddy products, and infringement of intellectual property rights, some people will seize these loopholes and reap benefits from claims.
"From this point of view, consumers’ legitimate claims are conducive to standardizing businesses, allowing businesses to demand themselves with stricter standards and strive to operate according to law. As long as businesses are strict with themselves and consciously abide by the law, they can avoid many problems. However, if the claim exceeds the legal limit and constitutes extortion, then the responsibility of the relevant personnel must be strictly investigated according to law. " Qiu Baochang said.
"If the claim amount is too high, or if the claim is made by abnormal means, the operator can refuse to pay and solve the problem through legal channels. It is necessary to distinguish the boundary between the normal exercise of consumers’ rights and extortion. Once this boundary is exceeded, it will constitute extortion and become a criminal act. Of course, this needs to be determined by the judiciary. " Liu Junhai said that protecting consumers’ rights and interests and optimizing the business environment should complement each other and not be antagonistic. (Reporter Du Xiao Intern Jing Qianzi)