After more than 800 lawsuits, 18-year-old "professional anti-counterfeiter" Chen Zhiqiang was officially placed on file for investigation. The court found that his anti-counterfeiting behavior was suspected of "extortion" and lacked reasonableness, and handed over the clues of his crime to the local public security bureau.
Although he has a certain reputation in the professional anti-counterfeiting circle, he has relatively few college degrees. He also opened a anti-counterfeiting rights protection company with a fee of 388 yuan
Although he now bears the title of "criminal suspect", he feels innocent: "First of all, I am a consumer, it is my right to sue, and it is the obligation of the merchant to respond to the lawsuit, and it is the court that requires the merchant to respond to the lawsuit, not me Chen Zhiqiang."
I'm just following the legal process. ”
In the event of fraud, the operator must compensate the consumer twice as much as the cost of the goods or services received by the consumer, at the request of the consumer. ”
Although the original intention of the legislation is good, it faces many difficulties in practice, as ordinary consumers have limited time, experience and discernment, and it is difficult to bear the burden of proof, while public authorities have limited manpower and cannot do everything.
Although the law has been enacted, the first person to eat crabs has not yet appeared. In 1995, Wang Hai, a 22-year-old young man from Beijing who was still in a legal tutorial class, walked into the Dongcheng District Industrial and Commercial Bureau, holding 12 counterfeit "Sony headphones" in his hand.
Since then, he has also become the last customer that major supermarkets and department stores want to see.
In the new year, Wang Hai was awarded the title of "China's first person to fight counterfeiting" by the China Consumer Protection Association for playing an important role in the field of anti-counterfeiting in China, and was rewarded with 5,000 yuan.
In that era, his act of bravery was strongly supported by **. Compared with ordinary consumers, professional anti-counterfeiters have a clear advantage in terms of professionalism and standard mastery of rights protection, and they are important participants in China's fight against increasingly serious counterfeiting and shoddy practices.
Subsequently, in several judicial practices, the legal profession uniformly determined through several judicial interpretations that the act of "knowingly buying counterfeits" did not affect the actor's claim for consumer rights and interests.
This attitude of the Supreme People's Court has made the identity of a "professional anti-counterfeiter" recognized, and the anti-counterfeiter and the legal profession have entered a stage of good cooperation. However, with the revision of the Consumer Law in 2013, the amount of punitive damages was doubled to triple, and the implementation of the new Food Safety Law in 2015 further increased the punitive damages to 10 times, resulting in the further intensification of the game between "professional anti-counterfeiters" and law enforcement agencies.
Due to the high rewards, anti-counterfeiting has become a profitable business. Since 2016, the number of food rights protection cases has skyrocketed, with more than eighty percent of the plaintiffs in the cases being professional anti-counterfeiters.
Behind the exhaustion of grassroots law enforcement agencies is the surge in anti-counterfeiting cases, which not only compresses judicial resources, but also causes market chaos and affects the normal operation of some operators.
In 2019, the "Guiding Opinions on Strengthening and Standardizing Supervision During and After the Event" issued by ** clearly stipulates that for-profit "anti-counterfeiting" and claims should be regulated in accordance with the law, which marks that the "** era" of anti-counterfeiting claims has passed.
However, due to the lack of clear legal provisions, the implementation standards vary from place to place, and there is still controversy about whether professional anti-counterfeiters meet the definition of "consumer" in the law.
Recently, the "case of being fined for selling 150 bowls of cooked meat" has aroused heated discussions, and although the plaintiff of the professional anti-counterfeiter has many anti-counterfeiting experiences, he is still recognized by the court as a consumer who can defend his rights and applies punitive damages.
In a sense, the existence of professional anti-counterfeiters is a witness to the gradual standardization of China's laws and market economy, and they can constantly remind producers and operators to avoid infringement and reduce illegal acts, which is in line with the legislative intent of purifying the market.
However, we should also pay attention to the negative impact and harm of professional anti-counterfeiting, gradually restrict profit-making anti-counterfeiting behavior, and at the same time give more understanding and tolerance to producers and operators.
Professional anti-counterfeiters are not specialized in anti-counterfeiting? In recent years, the phenomenon of professional anti-counterfeiting has occurred frequently in many places, and some people take advantage of the busy work of administrative organs to make complaints and reports by copying and pasting, so as to achieve the purpose of forcing businesses to accept their unreasonable requirements.
A large number of professional anti-counterfeiting cases can be found by searching for keywords such as "tenfold compensation", "triple compensation" and "food safety standards" on the Chinese Judgment Online.
Among them, some plaintiffs have appeared in dozens of similar cases, and they are known as "anti-counterfeiting maniacs" who are professional anti-counterfeiters. Litigation is their daily routine, and Chen Zhiqiang is an example, who has initiated more than 800 civil lawsuits in one year.
It is not difficult for major supermarket chains and food brand companies to get to know local anti-counterfeiting groups, and they often appear in various sales outlets, making enterprises feel tired to cope.
However, in fact, most professional anti-counterfeiters do not really fight counterfeiting, and rarely involve food safety issues. Because they have to spend a lot of time and energy, they also need to carry out various tests and inspections at their own expense, which is difficult to prove, costly, and low-return.
Anti-counterfeiters usually use large supermarkets to import food for profit. These supermarkets have a high market share, strong economic strength, and are often able to provide effective evidence and compensation quickly.
In contrast, many imported food manufacturers are not familiar with domestic systems and regulations, so labeling problems frequently occur, providing a lot of opportunities for counterfeiters.
In addition, expired food is also the object of frequent attention of professional anti-counterfeiters. They even resort to unethical tactics, such as hiding items that are about to expire and waiting until they expire to buy them in order to obtain compensation.
Nowadays, e-commerce platforms, solitaire and live broadcast shorts have also become key areas of focus for professional anti-counterfeiters. They can browse and live broadcast to discover the "three nos" products whose packaging, slogans and labels suggest that they do not meet food safety standards.
Once they find such a product, they will first take the initiative to claim compensation from the merchant and ask for compensation several times the value of the goods. In order to resolve disputes as soon as possible, many merchants often choose to compensate directly.
After the counterfeiters make invalid claims against the merchants, they often report and complain to the administrative agencies, and through repeated applications for information disclosure, administrative reconsideration, etc., the administrative authorities are tired of coping, and even pressure the enterprises to reach a settlement.
However, complaints and reports by professional anti-counterfeiters occupy a lot of law enforcement resources, leaving relevant agencies with no time to deal with food safety issues that are truly related to people's lives and health.
Eventually, professional anti-counterfeiters will initiate civil lawsuits to obtain compensation by taking advantage of the high litigation costs of some businesses and the fear of being smeared. It should be noted that the adjudication standards of local courts on professional anti-counterfeiting are different, with some supporting and some opposing.
When we study the relevant precedents of the China Judgments Network, we find that courts with more professional anti-counterfeiting claims are more inclined to oppose it, while courts with fewer professional anti-counterfeiting claims are more supportive.
In dealing with this difference in penalty scales, the two approaches compete with each other behind the scenes. Some judicial institutions and administrative agencies prefer to settle matters and reduce workload, which indirectly prompts businesses to accept mediation and meet the claims of anti-counterfeiters.
However, the lax scale tends to attract more claimants to participate, leading to a surge in cases, which in turn affects the court's handling of other civil cases, resulting in a backlog of cases.
At this point, the court may dissuade potential professional counterfeiters from retiring them from the difficulties through unfavorable adjudication results. At present, the latest revised version of consumer protection has not yet been promulgated, and the key to judicial adjudication is to guide people's future actions, rather than just dealing with individual cases, otherwise the process of rule of law will not be able to keep up with the pace of social practice.
Closing the profit-making loophole for professional anti-counterfeiters will require law enforcement agencies to develop more valuable precedents to ensure consistency across the country.
Chen Zhiqiang has received a decision from the Public Security Bureau to file a case, but he still insists that his methods are legal. Although the court dismissed all his appeals, no action was taken against him.
Even though he was already in debt, he trusted the law to do justice to him. Wang Hai, who is the ancestor of "professional anti-counterfeiting", is also very concerned about this issue, and he believes that the fight against counterfeiting should not only look at the law, but also see whether the business has really deceived consumers and damaged the interests of consumers.
In fact, many practitioners of "professional anti-counterfeiting" have deviated from the principles of the rule of law and integrity. Most of their product dispute cases ended with the appellant withdrawing the lawsuit or the appellant not showing up, which wasted valuable judicial resources and allowed the "fakes" to continue to circulate in the market, from which they earned considerable "private" fees and continued to look for their next prey.
The state and local governments have issued a series of policies to restrict the abuse of rights such as complaints and reports, information disclosure, reconsideration litigation, supervision and complaints, and the "professional anti-counterfeiting" behavior that squeezes out administrative and judicial resources.
For example, in 2019, the State Administration for Market Regulation issued the Interim Measures for the Handling of Market Supervision and Administration Complaints and Reports, which clearly stipulates that only complaints that need to be purchased or used for daily consumption or receive services, and can prove that there is a consumer rights dispute with the respondent, will be accepted by the market regulation authority.
At the same time, Shanghai has also listed the restriction of "professional anti-counterfeiting" as part of the city's special struggle to eliminate organized crime and vice, and has successfully curbed the high incidence of "professional anti-counterfeiting" behavior suspected of violating the law and committing crimes by transferring clues related to "professional anti-counterfeiting" to the public security organs.
The introduction of these policies has effectively prevented malicious complaints and abuse of rights, and has safeguarded market order and social justice.
The Chongqing High People's Court's Answers to Several Questions Concerning the Trial of Disputes over the Protection of Consumer Rights and Interests clearly stipulates that a purchaser who knows that the goods or services have quality problems cannot claim punitive damages, because this violates the principle of good faith.
The Shenzhen Special Economic Zone Food Safety Supervision Regulations stipulate that complainants whose main income** is to claim compensation or incentives can terminate the investigation and include their leads in food safety risk monitoring.
In its 2020 judicial interpretation, the Supreme People's Court clarified that if a dispute arises over the quality of food or drugs, and the buyer claims rights against the producer or seller, and the producer or seller argues on the ground that the purchaser is aware of the quality of the goods or services, the court will not support it.
According to statistics, from 2019 to 2021, among the 100 judgments involving professional anti-counterfeiting on the China Judgment Document Network, 32 supported the compensation requests of "professional anti-counterfeiters", 66 rejected their litigation claims, and 2 judgment documents, the people involved were sentenced for extortion.
This shows that in recent years, the judicial authorities have gradually strengthened the punishment for "professional anti-counterfeiting" behavior, and the definition of "consumer" has become stricter.
The long-awaited "Implementation Regulations on the Protection of Consumer Rights and Interests", which has been soliciting opinions since 2016, is finally about to be promulgated. The core of this law, which has been included in the legislative plan many times but has never come to fruition, is whether the application of punitive damages should be extended to professional anti-counterfeiters.
This will directly affect the future of "Chen Zhiqiang" and "Shao Baichun". Everyone has the right to protect their legitimate rights and interests, and the real anti-counterfeiting behavior should be welcomed and supported.
However, we hope that the professional anti-counterfeiters who are active in the society can fulfill their responsibilities as supervisors, take social responsibility as the basic requirement, and maintain the dignity and integrity of the law.