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Strict punishment of counterfeit sellers is the key to combating counterfeiting
Xinhuanet
The nationwide joint anti-counterfeiting campaign is still in progress, and consumers are excited by the continuous results. Although the anti-counterfeiting campaign has eliminated many counterfeiting and selling dens, the problems exposed at the same time are also worrying. A prominent feature of the current illegal crimes of counterfeiting and shoddy products is that in some places, the production and sale of counterfeit goods has become a common practice. There has been a situation where counterfeiting and shoddy goods can be produced in one village or street, and include production, sales, transportation, warehousing, and storage. In addition, the application of high technology and the participation of highly educated personnel have made counterfeiting methods more covert and complex. For example, when the Guangdong Provincial Bureau of Quality and Technical Supervision investigated a counterfeiting site suspected of counterfeiting high-tech diamond saw blades, it found that most of the managers of the counterfeiting factory had a college degree or above and understood law, management, and technology. They usually paid great attention to research. The level of counterfeiting of domestic famous brand diamond saw blades is quite high. Therefore, although the anti-counterfeiting efforts are constantly intensifying, counterfeit and shoddy goods have a feeling of "wild fire will not burn out, but the spring breeze will blow again". Coupled with the protection of protectionism in some places, those who make and sell counterfeit goods either resist law enforcement or resist law enforcement. The "guerrilla" fight with law enforcement officials has led to the proliferation of counterfeit and shoddy goods in some places, and the anti-counterfeiting situation is extremely severe.
The reason why counterfeit and shoddy goods are so rampant is that high profits can be made from the production and sale of fake goods. Counterfeiting is the “source” and selling counterfeiting is the “power” of counterfeiting. The ultimate goal of manufacturing fake and shoddy goods is to sell them for profit. As the saying goes, "If you don't sell them, don't make them." In the fight against counterfeiting, law enforcement agencies often overemphasize the need to crack down on counterfeit goods at the source and give counterfeiters a "heavy blow", while the punishment for counterfeit sellers is often light or even ignored. After the counterfeit goods are confiscated, the counterfeiters are still there, and the counterfeiting equipment destroys the counterfeiting technology. However, in a different time and place, the same counterfeiters will still produce the same counterfeit goods and flow into the market to cause harm. . There is demand and there is profit, which is why counterfeit and shoddy goods are constantly being cracked down on and become increasingly difficult to crack down on.
The author believes that the anti-counterfeiting campaign should not only crack down on counterfeiting, but also crack down on the sale of counterfeit goods and completely destroy the profit model of counterfeit goods. Some merchants especially like to sell fake and shoddy goods, because these goods are highly profitable, highly effective, and low-risk. Even if they are seized by the industrial and commercial departments, they will only be confiscated. If consumers come to them, they can still blame the counterfeiters and say "I don't know." "It depends on what you can, but these are really insignificant compared to the profits he has made. Therefore, the fight against counterfeiting must not only eliminate the dens of counterfeiting, but also take strict punitive measures against the sale of counterfeit goods to completely eliminate the "motivation" to produce fake and shoddy goods. If all businesses are afraid or unwilling to sell fake goods, how can counterfeiters realize profits?
An effective way to combat the sale of counterfeit goods is for consumers and industrial and commercial departments to join forces and crack down on those who sell counterfeit goods. First, consumers will complain to the relevant industrial and commercial departments. The industrial and commercial departments will investigate and deal with the merchants based on the clues provided by the consumers. Once confirmed, they can impose a fine of more than 10 times the value of all counterfeit and shoddy goods sold by the merchants. At the same time, those who provide clues will be fined. Consumers give rewards ranging from 2 to 5 times, so that no matter who sells fake goods, whether he knows or does not know that what he is selling is fake, he will be severely punished once verified. This makes merchants not only responsible for themselves, but also responsible for consumers when purchasing goods. Those who buy fake goods pass the losses to consumers, or knowingly know that they are fakes but deliberately deceive consumers in order to obtain high profits. All behaviors should be severely punished. Through external supervision and restraint, we can not only crack down on merchants selling counterfeit goods, but also cultivate the integrity of merchants. Finally, when all merchants reject counterfeit goods for their own benefit, counterfeit and shoddy goods will naturally disappear, realizing "no "Sale but not production" situation.
Calling for the legalization of professional anti-counterfeiters
——Also discussed with researcher Liang Huixing
An old topic that has attracted public attention in domestic media since July 2002 , due to the promulgation of the "Shanghai Consumer Rights Protection Regulations (Revised Draft)", has resurfaced and has become a controversial issue not only within consumer associations such as the Shanghai Consumers Association and the National Consumers Association, but also among jurists and the media. focus. This has been a focus that has not been resolved for a long time, that is, should the Consumer Rights Protection Law protect "those who know about fakes, buy fakes and crack down on counterfeiters"? As in the editor's note of "Southern Weekend" (July 25, 2002) : "Between legal disputes and practical needs, we still need more in-depth debate and discussion."
In fact, this dispute is not limited to jurists or even social canon. It is also in the judicial system. Specifically, within a certain court that hears such litigation cases, or even within the collegial panel, there will be two different opinions.
According to Zhao Bingqing, judge of Shanghai Huangpu District Court, one of the two opinions is that those who use anti-counterfeiting as a means of profit are not real consumers and Article 49 of the Consumer Law does not apply; the other is that consumers should not be held accountable As long as the merchant does sell counterfeit goods, it constitutes fraud, and whoever catches it should be compensated.
I think: First of all, we must review the so-called "refund one and compensate one", that is, double compensation, Article 49 of the Consumer Rights Protection Law: "If an operator commits fraud in providing goods or services, he shall Compensation for losses suffered by consumers shall be increased at the request of consumers, and the amount of increased compensation shall be double the price of goods purchased by consumers or the cost of services received.”
The divergent opinions on "knowing about fakes and buying fakes" are mainly caused by different understandings of the concept of "consumer" in Article 49 of the Consumer Law. So what is the real legislative intention of this article? Well-known legal scholar Liang Huixing replied in an interview: "I personally participated in the drafting process of the "Consumer Law". At the expert discussion meeting on the draft of the "Consumer Law", There were many people who opposed this article, but the only ones who strongly advocated the enactment of this article were He Shan (Legal Affairs Committee of the National People's Congress), Wu Gaohan (formerly China Consumers Association), and myself. At that time, we just wanted to use economic benefits to mobilize the people who were defrauded. "Consumers are very motivated to protect their own rights and interests and punish operators who commit fraud. They never thought that someone would take advantage of this to make profits. A professional anti-counterfeiter actually appeared outside of operators and consumers," Mr. Liang thought. If the professional anti-counterfeiting class of "knowing fakes and buying fakes" is allowed to develop blindly, a profit-making industry that is separated from public and private rights and whose business is fighting counterfeiting will be formed. "Illegal".
But Wu Gaohan, one of the "three of us", believed in a telephone interview that consumers are the "natural enemies" of counterfeit and shoddy goods and agreed with Article 49 of the Consumer Protection Law. Others included Qiao Xiaoyang and Hu Kangsheng of the National People's Congress Legal Affairs Committee, as well as representatives from many provincial and municipal people's congresses and consumer associations. Wu Gaohan felt that "knowing and buying fake goods does not belong to consumers" has become a legal term and has been debated endlessly. "It's very confusing and very sad." He believes that "knowing about fakes and buying fakes" is a concept imposed on consumers by operators, which violates the basic spirit of the "Consumer Law" legislation.
Another He Shan not only Six years ago, he took the initiative to "buy fakes on suspicion of being fake" and "suspected two paintings of Xu Beihong's "Running Horse" to be fake, and sued for protection. In the end, he was supported by the court and received double compensation. Moreover, he believed that consumers bought fakes. Claims are good for society and should be encouraged. Individual anti-counterfeiting not only protects the rights and interests of consumers, but also reduces the government’s anti-counterfeiting costs, and should receive care and support.
Please be honest, I appreciate Researcher Liang’s “rationality.” " and not "emotional", and supports "the establishment of a real government 'reward and anti-counterfeiting' system." However, the Consumer Law has not been amended to exclude professional anti-counterfeiters who "know about fakes and buy fakes" from consumers. Before clearly defining it, comparatively speaking, given that the Chinese market is full of fakes and even fakes can be confused with real ones, it is difficult for Li Kui to tell the difference. Just like a classic line from a TV series: "Now only mom is real, even dad is fake." In this case, I think " "Professional anti-counterfeiters" have emerged as the times require, not too many but too few. Even if these brave "anti-counterfeiting heroes" "get rich first" and our generation does not have to worry about fakes when buying daily necessities: firewood, rice, oil, salt, sauce, vinegar and tea, what harm does it matter? ?I only know that there is a "Wang Hai" in Tianjin who agrees with his view that "knowing about fakes, buying fakes or cracking down on fakes will undoubtedly increase the risk cost of sellers, which is good for reducing fraud and conducive to social welfare." It is said that he has. He quit the "anti-counterfeiting" campaign and concentrated on writing books; Nanjing gave birth to "Yang Hong"; Shanghai gave birth to "Wang Haidong". There is also a representative figure in each of the large and medium-sized cities across the country, in order to effectively curb the proliferation of counterfeiting and shoddy products. "Professional anti-counterfeiters class", what's the "social harm" of that? Professional anti-counterfeiters live and die with counterfeit goods, making the Chinese market as clean as the United States, Japan and even some small developing countries, what's the point? What's not good?
Mr. Liang explained the "original intention" of the legislation as the drafter of the "Consumer Law", allowing us to understand Mr. Liang's own "original intention" at the time of legislation. However, the legislation was a struggle and compromise. In the process of drafting a law, there is more than one person involved in drafting the law, and it is difficult for each drafter to have the same "original intention". When disputes arise over the application of the law, it is quite difficult to find the "original legislative intention", even if a certain drafter It is difficult to say that the author's own interpretation is the "original legislative intent". If the "original intent" of the two drafters are opposed, then whose "original intent" is the "original legislative intent"?
Once the law is enacted, it is It is destined to lag behind life, because legal provisions are stable, but social life is constantly changing. The law must keep pace with the times. To solve the contradiction between rigid legal provisions and fluid social life, we must interpret the law. Zhang Mingkai of Tsinghua University School of Law pointed out: “A phenomenon that can be seen everywhere is that for the same provisions and the same terms, scholars from different schools may study completely different interpretations with reasonable grounds.” And “to determine what is the true interpretation, what is the true interpretation?” For a true interpretation, we must not only see whether it conforms to the literal meaning, but also whether it conforms to justice." ("Preface to the Basic Position of Criminal Law" China Legal Publishing House). It is in this sense that I believe that “According to a survey by a well-known website, more than 90% of netizens agree with Wang Hai’s style of ‘knowing the fake and buying the fake’, and the public opinion is obviously one-sided, which is no accident.
"Beijing Youth Daily" (July 22, 2002) "Interpretation of "Buying Counterfeit Products Without Protection"" talks well: "This time, consumers showed a strong response to the rumors of "Buying Counterfeit Products Without Protection" Public anger' is actually a microcosm of the relatively weak position of consumers in the current consumption environment. ”
As for judicial supervision, everyone knows that in the United States, the judges of the Federal Supreme Court carry out constitutional supervision and interpretation. Charles Evans Hugo, the chief justice of the court from 1930 to 1941, Erans Haghes has a frank and shocking saying: We are under the Constitution, but the Constitution is What the Judges say it is.
China is a country with written laws and non-case law, and judges cannot make laws. In terms of judicial support for the fight against counterfeiting, optimizing and purifying the market, I think the "Approval" issued by the Shanghai Higher People's Court to support Wang Haidong's fight against counterfeiting is very valuable. Worth promoting.
On April 8, 1998, the Shanghai Higher People's Court issued the "Reply on the Product Quality Dispute between the Plaintiff Wang Haidong and Shanghai Zhenzhi Tourist Shopping Center": "The plaintiff purchased a cordless phone from the defendant. Nothing illegal. The cordless phone sold by the defendant to the plaintiff did not have a "network access license" issued by the postal and telecommunications department, nor did it obtain a "cordless radio transmission equipment model approval certificate" issued by the State Radio Regulatory Commission, and was a product prohibited from sale by national laws, regulations, and policies. The defendant's conduct constituted fraud on unspecified consumers. Operators who operate illegally should not only accept administrative penalties, but also bear civil liability to consumers. Therefore, in this case, the defendant should be held liable in accordance with Article 49 of the Consumer Rights Protection Law. ”
It is precisely because of this clear attitude that the extraordinary "Approval" requires courts at all levels in the city to treat the goods regardless of who is buying the goods, whether he knows about the counterfeit goods or not and whether he has personal life needs. All operators who have experienced If the report and review confirm that it constitutes fraud, Article 49 of the Consumer Law will apply, and the buyer will be refunded. This makes the Shanghai market, compared with markets across the country, although it cannot be said that fakes have disappeared, it has indeed created a good shopping environment. and the purification and optimization of the law enforcement environment. Isn’t this eye-catching and well-known? It is recommended that the Supreme People’s Court exclude “one party intentionally informs the other party of false information, or deliberately conceals the true situation to induce the other party to make wrong intentions.” Expressed, it can be determined as fraud” (Article 68 of the Opinions on the Implementation of the General Principles of Civil Law on Ruoping Issues) is extended to Article 49 of the Consumer Law, and will be promoted by the Shanghai High Court’s Reply The national court system is applicable as a reference.
Aren’t we advocating learning from foreign advanced experience, saying that other countries can attack jade with rocks? Now the Pinkerton Company in the United States, which is world-famous for its financial security industry, has been using "investigation" since 1992. "Company" has entered China's "anti-counterfeiting" market. It is said that more than 80% of the company's business is focused on "anti-counterfeiting". The China Association of Enterprises with Foreign Investment's Quality Brand Protection Committee is the largest domestic group that monitors 74 multinational companies including Procter & Gamble and Unilever. The company's brands are protected. Among them, Procter & Gamble's annual counterfeit losses are 1.2 billion, and Unilever's annual counterfeit losses are not only legal, but also large-scale and corporate. It has become not only an enterprise but also the main business of a market industry under our noses. Why don't we directly "take" their experience and learn from it? Even to this day, we are still arguing endlessly about whether "knowing fakes and buying fakes" is legal. Illegal, is it protected by law?
Finally, we call on "professional anti-counterfeiters", that is, those who make a living using Article 49 of the Consumer Law, to recognize that their actions are not only reasonable and should be punished Legalization. I fully agree with the "Legal Daily" (July 18, 2002) "Justifying the Claims for Knowingly Buying Counterfeit Products" because "Legal speaking, it is a rule of law to recognize that people who know fake products are consumers." A manifestation of the importance and protection of individual rights. In a society governed by the rule of law, citizens enjoy the right and freedom to possess, control and use their legal property in accordance with the law, and no other institution or individual has the right to examine citizens' motives for spending money. From a legal point of view, the contrast between public opinion's overwhelming support for claims made by knowingly buying fake products and the hateful attitude of some businesses selling fake and shoddy goods is enough to tell which side of the people's support. Therefore, legislation should give a green light rather than a red card to claims made by knowingly purchasing fake goods. "Please allow the dog's tail to continue; not only the legislation, but also the judiciary, administration, jurisprudence, lawyers, including the media should all talk about gold.
In short: for the purification of the Chinese market, for the integrity of China's exports, for the sake of the Chinese spirit To be civilized, we have no choice but to effectively combat counterfeiting and fraud. "Cracking down on counterfeiting" is the last word and the basis and prerequisite for judging right and wrong. In addition to relying on the government and various industries, including consumer associations, the whole society must be mobilized to fight against counterfeiting. All fraudulent activities, including the production and sale of counterfeit products, will be attacked at the sound of a drum. Those who work in the anti-counterfeiting industry must be encouraged, supported and legalized, and no discrimination, exclusion or denial will be tolerated.