Professional counterfeiters will not be protected.
The Legislative Affairs Office of the State Council announced the draft of the regulations for the implementation of the Consumer Protection Law yesterday for public comments. Among them, it is clear that "these regulations are not applicable to those who purchase or use goods or receive services for profit", that is, "professional counterfeiters are not protected by the Consumer Protection Law"; Merchants are not allowed to send sales promotion information to consumers by telephone or email without the consent of consumers.
Jinghua Times reporter Sha Xueliang
Counterfeiters shall not "make profits for the purpose"
In recent years, the negative social impact of "professional counterfeiting" has become increasingly prominent, which has aroused great concern from all walks of life. The State Administration for Industry and Commerce pointed out in the drafting instructions of the Implementation Regulations of the Law on the Protection of Consumer Rights and Interests in People’s Republic of China (PRC) (Draft for Review) that, from the legal point of view, the subjective purpose of "professional counterfeiters" is to make a profit by claiming a high amount of money, which is not a living expense, nor does it constitute misleading, and punitive damages for fraud in the Consumer Law should not be applied. In practice, "professional counterfeiting" is mostly aimed at irregular phenomena such as advertising terms and labels, and it has little effect on really cracking down on fake and shoddy goods and fraudulent behavior of operators. In addition, the rapid expansion and spread of "professional counterfeiters" has greatly wasted public resources such as administration and justice, disrupted the market order, and it is necessary to curb it in time.
In August this year, the draft of the regulations for the implementation of the Consumer Protection Law was released, which made it clear that "professional counterfeiters" were not protected by the Consumer Protection Law. The draft notes for the draft submitted for review suggest that after the "Regulations" were publicly solicited for opinions, Article 2 aroused great repercussions, and there were different understandings, but the opinions in favor were increasing. On the basis of extensive research on the opinions of all parties, the "Regulations" absorbed the opinions of the Development and Reform Commission and was revised as "for the purpose of making profits" to more accurately express the legislative intent and implement the spirit of the Consumer Law of the superior law. To this end, Article 2 of the draft for review responds to social concerns for the first time at the legislative level, and makes it clear that those who purchase or use goods or receive services for profit are not suitable for these regulations.
No telemarketing without the consent of consumers
The draft for review also stipulates that operators should establish and improve information confidentiality and management systems, and may not provide consumers’ personal information to others without the consent of consumers, and may not send commercial electronic information or make commercial sales calls to consumers’ fixed telephones, mobile phones and other communication equipment, computers and other electronic terminals or electronic information spaces such as e-mail boxes and network hard disks.
The draft is clear, and the personal information of consumers includes name, gender, occupation, date of birth, ID number, address, contact information, income and property status, health status and consumption status. Operators must clearly state the purpose, manner and scope of collecting and using information and obtain the consent of consumers, and may not collect information irrelevant to business operations or collect information by improper means.
Where consumers explicitly request operators to delete or modify their personal information, unless otherwise stipulated by laws and regulations, operators shall delete or modify it according to the requirements of consumers. In case of information leakage or loss, the business operator shall take remedial measures and notify the consumers in time. Proof that the operator has fulfilled the express obligation and obtained the consent of the consumer shall be retained for at least three years.
> > expert interpretation
Suspected fakes and buying fakes can play a synergistic role.
Lawyer Qiu Baochang, director of the Consumer Rights Protection Committee of Beijing Lawyers Association and director of Beijing Huijia Law Firm, believes that the implementation regulations of the Consumer Rights Protection Law do not limit counterfeiters, and the original law does not support profit-making buyers or counterfeiters. Only the second article of the implementation regulations emphasizes that people other than financial consumers are not protected by consumer law, which has two meanings in breakdown: first, people other than financial consumers are not allowed to make profits; Second, financial consumers can make profits, which has actually broken through the scope of application of the original consumer law.
Qiu Baochang said that what is a professional counterfeiter should be defined by the relevant departments, because ordinary consumers also have profit-making purposes in defending their rights. Qiu Baochang believes that the focus should be on the punishment of counterfeiting and selling fakes, and should not care whether the buyer is a consumer, whether it is for profit, or whether it is a professional counterfeiting.
In addition, most of the so-called "professional counterfeiters" are aimed at irregular phenomena such as advertising language and label identification, which has little effect on truly cracking down on fake and shoddy goods and fraud by operators. Qiu Baochang believes that it is the right of every citizen to complain, report and prosecute illegal operators.
Professor Liu Junhai, director of the Institute of Commercial Law of Renmin University of China, said, "We should objectively and fairly understand the role and function of those who buy fake goods. Suspicious buying fakes can play a synergistic role for industrial and commercial administrative law enforcement departments and help promote social fairness and justice. "
Professor Liu Junhai believes that building a consumer-friendly society in an all-round way can not be separated from the punitive damages system, which has six social functions: severely punishing the faithless, fully compensating the victims, generously rewarding the defenders, effectively warning the whole industry, comprehensively educating the public and comforting the public’s psychological feelings. Jinghua Times reporter Wang Xiaofei