Ice and snow tourism has added a romantic atmosphere to the cold winter, and the "wind of Erbin" is blowing all over the country, and cultural tourism from all over the country is vying to get out of the circle. The Spring Festival holiday is approaching, are you about to embark on a journey?
This issue of Jing Xiaomallet starts with one of the most popular popular delicacies "barbecue", and we will feel it from real cases - fireworks are also escorted by the rule of law in the world!
After drinking, you are impulsive, and travel becomes a sentence!
Case review. At about 23 o'clock one day in May 2022, when Zhao was dining at a barbecue restaurant in Beijing, he caused trouble after drinking, and teamed up with others to beat Xu, a customer at the next table, for no reason, causing Xu to suffer second-degree minor injuries. At trial, the court held that Zhao had drunk and conspired with others to beat the victim for no reason, causing a person to be slightly injured in the second degree, and the circumstances were heinous, and that his behavior had violated the criminal law, constituted the crime of picking quarrels and provoking trouble, and should be punished in accordance with law. Because he voluntarily came to the case, voluntarily pleaded guilty and accepted punishment, and paid part of the compensation, he was given a lighter punishment for the crime he committed in accordance with law. In the end, the court sentenced Zhao to nine months in prison for the crime of picking quarrels and provoking trouble.
Jing Xiao Hammer Interpretation Law.
The legal interests protected by the crime of picking quarrels and provoking troubles are mainly public order, and if you beat others at will, and the legal interests infringed by it are manifested as provoking social and public order, it is an act of picking quarrels and provoking troubles. If the degree of picking quarrels and provoking troubles is minor and the impact is small, it is suspected of violating the "Public Security Administration Punishment Law of the People's Republic of China" and will be subject to administrative detention, fines and other punishments. If the victim's injuries meet the requirements of "causing minor injuries to one or more persons or minor injuries to two or more persons", the crime of picking quarrels and provoking troubles is constituted. When the assault meets the constitutive elements of both the crime of intentional injury and the crime of picking quarrels and provoking troubles by random assault, according to the theory of criminal law, one of the felonies should be selected for handling. If the victim is seriously injured or more as a result, the sentence shall be within the range of 3 to 10 years in accordance with the sentencing range for the crime of intentional injury, and it is a felony and should be punished as the crime of intentional injury.
In addition, alcohol consumption is not exempt. Paragraph 4 of Article 18 of the Criminal Law of the People's Republic of China stipulates: "A person who commits a crime while intoxicated shall bear criminal responsibility. "It is clearly stipulated that the crime of drunkenness is not exempt from liability, and full criminal responsibility must still be borne after drinking.
Kyo small mallet tips.
After the fist falls, there is no winner, don't let the fireworks in the world turn into a horror! On the way out, while relaxing and eating, pay attention to drinking in moderation, be calm in case of trouble, don't be rash, be brave and ruthless, and be strong for a while, so as not to regret it. If there is an argument or even scuffle with other customers during the meal, pay attention to your own safety and call the police in time.
* "Carbon monoxide, quietly take safety!"
Case review. Wang Mou's group of five people dined at the *** restaurant, and the main meal was charcoal-grilled lamb shank. During the meal, Wang developed dizziness and other symptoms, and after being sent to the hospital**, he was diagnosed with carbon monoxide poisoning. Wang believed that the restaurant was not properly ventilated and failed to fulfill its safety and security obligations, so he sued the court to demand that the restaurant bear tort liability. The restaurant believed that it had ventilation facilities to ensure good ventilation, and Wang's carbon monoxide poisoning was caused by his own reasons. After trial, the court held that as a restaurant operating barbecue, it should be aware of the consequences of insufficient combustion of fuel charcoal, and should take adequate preventive measures against the possible adverse consequences, and that Wang was poisoned by carbon monoxide during the dining process, and the restaurant failed to fully fulfill its safety and security obligations, and should be liable for compensation for the reasonable losses suffered by Wang due to carbon monoxide poisoning.
Jing Xiao Hammer Interpretation Law.
Article 1198 of the Civil Code of the People's Republic of China stipulates that if a business place, a manager or manager of a public place or an organizer of a mass event fails to fulfill its obligation to ensure safety and causes damage to others, it shall bear tort liability.
As a business place that provides paid dining services to the public, barbecue restaurants have the best understanding of the actual situation of the restaurant, can foresee possible dangers and damages, and can take necessary measures to prevent damage or reduce the extent of damage at the minimum cost. The safety and security obligations of restaurant operators are mainly reflected in ensuring that there are no safety defects in the business premises, taking necessary measures to eliminate potential safety hazards, and providing reasonable and clear reminders for routine risks. According to the provisions of the Civil Code on tort liability, the principle of fault liability shall apply to the liability for breach of security obligations. The obligor shall only be liable if it fails to fulfill the aforesaid security obligations. In addition, if the infringed party is at fault for the occurrence or expansion of the same damage, the infringer's liability may be reduced.
In this case, the barbecue restaurant failed to ensure effective air circulation in the private room, failed to fulfill its obligation to prompt, and failed to fulfill its safety guarantee obligations such as risk prevention and danger elimination within a reasonable limit, resulting in the occurrence of damages.
Kyo small mallet tips.
The catering industry that uses charcoal and gas as fuel should do a good job in preventing potential safety hazards related to dining, use compliant fuels, ensure good ventilation, and clearly remind consumers that early warning devices for excessive carbon monoxide can be installed if conditions permit.
Consumers should improve their safety awareness, understand the type of fuel when eating, pay attention to ventilation, seek medical treatment immediately if they feel unwell, and keep the receipts of medical expenses and other expenses, so as to protect their rights in a timely manner.
Cunning ** assassin, beware of being plotted!
Case review. After being investigated by the administrative organ, it was found that there was an illegal act of violating the provisions of the clear price marking, and was ordered to correct and fined 500 yuan.
Jing Xiao Hammer Interpretation Law.
Consumers have the right to fair dealing, which includes quality assurance, reasonableness and correct measurement. Article 13 of the ** Law of the People's Republic of China stipulates that business operators selling and purchasing goods and providing services shall clearly mark the price in accordance with the regulations. Paragraph 4 of Article 14 stipulates that business operators shall not use false or misleading means to induce consumers or other business operators to conduct transactions with them. At the same time, the Provisions on Clearly Marking Prices and Prohibiting Fraud (Order No. 56 of the General Administration), which came into effect on July 1, 2022, improves the rules for determining fraud, supplements the exemption clauses that are not suitable for identifying fraud, and provides clearer and more unambiguous guidance for operators. According to the above provisions, **fraud has the following constituent elements: first, the subjective intention to commit **fraud and deceive consumers to conduct transactions with them. This element is the main difference between fraud and violating the clear marking. Second, the act is false or misleading, which is deceptive. Including low standard and high knot, fictitious original price, false discount and other forms. Third, as a result, the business operator uses fraudulent means to make consumers or other business operators trade with them against their true will, infringing on the legitimate rights and interests of others. However, after the transaction is settled, the actual discount and price reduction range is not completely consistent with the marked range, but it conforms to the trading habits such as rounding and rounding, which does not constitute ** fraud.
If the merchant sells goods without knowing the price, he may face the penalty of being ordered to make corrections, confiscating illegal gains, and imposing a fine of less than 5,000 yuan. If the merchant commits fraud, according to Article 55 of the Consumer Rights Protection, the consumer may request a refund of one and three compensations.
Kyo small mallet tips.
Operators should be more honest and less routine. The price of the goods provided shall be clearly marked, and false or misleading means shall not be used to deceive consumers.
In the face of illegal situations, consumers should keep their eyes open, use good legal armor, and prevent hidden stabs. Don't judge the food based on its appearance alone, take the initiative to ask for a menu with **, and if the merchant is vague, choose carefully to avoid falling into the trap. When the legitimate rights and interests of the merchant are infringed, actively protect the rights through complaints, lawsuits and other means.
Expired food is in the stomach, and the heart is disturbed to the tip of the tongue!
Case review. When Liu went to a barbecue restaurant to dine on April 2, 2023, he purchased 3 bottles of drinks in the store, each of which was 50 yuan, and found that the production date of the three bottles of drinks was February 20, 2022, and the shelf life was 12 months, all of which had passed the shelf life. The barbecue restaurant recognized the fact that Liu dined at the store and purchased drinks, but believed that Liu's litigation claim was unreasonable. The court held that the drinks purchased by Liu at the barbecue restaurant exceeded the shelf life, so they did not meet China's food safety standards. As a profit-oriented food sales entity, restaurants should be familiar with China's food safety standards and have a high duty of care for the food they sell, but their failure to clean up food beyond the shelf life should be deemed to be a "knowing" situation. In the end, the court upheld Liu's claim.
Jing Xiao Hammer Interpretation Law.
Article 33 of the Food Safety Law of the People's Republic of China stipulates that food production and operation shall comply with food safety standards, and lists specific requirements. Article 54 stipulates that food business operators shall store food in accordance with the requirements of ensuring food safety, regularly inspect the food in stock, and promptly clean up the food that has deteriorated or exceeded the shelf life. Article 148 stipulates that in addition to claiming compensation for losses, consumers who produce food that does not meet food safety standards or operate food that they know do not meet food safety standards may also demand compensation from the producer or operator for compensation of ten times the price or three times the loss; Where the amount of increased compensation is less than 1,000 RMB, it is 1,000 RMB. There are two elements for punitive damages for food business operators to bear 10 times the price: one is to sell food that does not meet food safety standards; The second is the sale of food that it knowingly does not meet safety standards.
The shelf life of food is related to food safety, and eating food beyond the shelf life is likely to cause personal injury. Catering businesses such as barbecue restaurants should attach great importance to food safety standards, fulfill sufficient and necessary care obligations for information such as the production date and shelf life of food, and promptly remove food beyond the shelf life from the shelves to avoid consumers from purchasing and eliminate potential hidden dangers.
Kyo small mallet tips.
The people live on food. Catering operators should always tighten the food safety strings, ensure that the procurement of meat products is legal, pay attention to kitchen hygiene, standardize the storage of raw materials, avoid mixing raw and cooked ingredients, self-check whether the ingredients are deteriorating, and remove expired food from the shelves in a timely manner.
Consumers should choose a regular restaurant with good hygienic conditions, ask for a formal invoice when paying and checkout, try to eat grilled meat, and pay attention to the shelf life information of packaged food in a timely manner, so as to jointly protect the peace of mind on the tip of the tongue.
With the advent of the tourism boom, relevant departments should strengthen supervision and management, improve the ability to respond to issues related to consumer rights and interests, operators should continue to enhance service awareness and improve service quality, and consumers should also shop rationally and protect their rights in accordance with the law. Jointly create a civilized and harmonious tourism environment, escort by the rule of law, walk with civilization, and meet beautifully!
Contributed by: Fengtai Court.
Editor: Yang Shixia Xiao Fei.
Review: Zhang Lei.