The nationwide joint anti-counterfeiting campaign is still being carried out in depth, and the sustained results have inspired consumers. Although anti-counterfeiting operations have destroyed many dens for making and selling fake goods, the problems exposed at the same time are also worrying. At present, a prominent feature of counterfeit and shoddy crimes is that counterfeiting and selling fakes has become a climate in some places, and there has been a situation of "one village, one street, production, sales, transportation, warehousing and custody". In addition, the application of high technology and the participation of highly educated personnel make the means of counterfeiting more subtle and complicated. For example, when Guangdong Bureau of Quality and Technical Supervision investigated and dealt with a fake den suspected of counterfeiting a high-tech diamond saw blade, it found that most of the managers of the fake factory had college education or above, and knew the law, management and technology. They usually pay great attention to the study of domestic famous brand diamond saw blades, and the level of counterfeiting is quite high. Therefore, although the anti-counterfeiting efforts have been continuously strengthened, fake and shoddy goods are like "wildfires, and the spring breeze blows high." Coupled with protectionism in some places, counterfeiters and sellers either resist law enforcement or fight "guerrillas" with law enforcement officers, resulting in the proliferation of counterfeit and shoddy goods in some places, and the situation of counterfeiting is extremely severe.

The reason why fake and shoddy goods are so rampant is that high profits can be made by making and selling fake goods. Counterfeiting is the "source" and selling fakes is the "force" of counterfeiting. The ultimate goal of making fake and shoddy goods is to make profits through sales, which is the so-called "no sales, no system" In terms of counterfeiting, law enforcement departments often overemphasize the need to crack down on counterfeit goods at the source and give counterfeiters a "heavy blow", while the punishment for counterfeiters is often very light or even indifferent. The fakes were confiscated, and the counterfeiters are still there. Counterfeiting equipment destroys counterfeiting technology, but at different times and places, the same counterfeiters will make the same fakes, which will do harm to the market. Where there is demand, there is profit, which is also the reason why counterfeiting is repeated. The more you fight, the harder it is.

The author believes that anti-counterfeiting actions should not only crack down on counterfeiting, but also crack down on selling fakes and completely destroy the profit model of counterfeit goods. Some businesses especially like to sell fake and shoddy goods, because these goods have high profits, high returns and low risks. Even if it is seized by the industrial and commercial departments, it will be confiscated at most. If consumers come to the door, they can also blame the counterfeiters. The sentence "I don't know" can be relied on, and it is really insignificant compared with the profits he has made. Therefore, counterfeiting should not only destroy counterfeiting dens, but also take severe punishment measures for selling fakes, and completely destroy the "motivation" for manufacturing fake and shoddy goods. If all businesses are afraid or unwilling to sell fakes, how can counterfeiters make a profit?

An effective way to crack down on fake sales is for consumers to join hands with the industrial and commercial departments, and whoever sells fake goods will be hit. First of all, consumers complain to the relevant industrial and commercial departments, and the industrial and commercial departments investigate and deal with businesses according to the clues provided by consumers. If confirmed, they can impose a fine of more than 10 times the value of all fake and shoddy goods on the fake merchants, and at the same time give rewards ranging from 2 to 5 times to the consumers who provide clues, so that the fake sellers can, whether they know it or not, once verified, hell to pay. In this way, businesses should not only be responsible for themselves when buying goods, but also be responsible for consumers. When buying fakes, they should pass on the losses to consumers, or knowingly deceive consumers to obtain high profits, which should be severely punished. Through the supervision and restraint of external forces, it can not only crack down on fake merchants, but also cultivate their integrity. Finally, when all businesses reject fake goods for their own benefit, fake and shoddy goods will naturally disappear, realizing the situation of "no sales and no production".

Call for legalization of professional counterfeiters

-And discuss with researcher Liang Huixing.

After July 2002, an old topic that attracted public attention surfaced again because of the publication of the Regulations on the Protection of Consumers' Rights and Interests in Shanghai (Revised Draft), which became the focus of controversy not only within consumer associations such as Shanghai Consumers Association and National Consumers Association, but also among jurists and the media. The focus that has not been solved for a long time is whether the consumer protection law should protect "counterfeiters who know and buy fakes"? As the editor's note of Southern Weekend (July 25th, 2002): "We need more in-depth debate and discussion between legal disputes and actual needs."

In fact, it is by no means limited to the dispute between jurists or even social canon, that is, there will be two different opinions in the judicial field and even in the court hearing such litigation cases. According to Zhao Bingqing, a judge of the Huangpu District Court in Shanghai, one of the two viewpoints is that counterfeiting is not a real consumer and Article 49 of the Consumer Law does not apply; Another view is that consumers' shopping motives should not be investigated. As long as the merchant does sell fake goods, it constitutes fraud, and whoever is caught should pay compensation.

I think: First of all, we should review the so-called "one refund and one compensation", that is, Article 49 of the Consumer Protection Law of double indemnity: "If an operator commits fraud in providing goods or services, it shall increase the compensation for the losses it has suffered according to the requirements of consumers, and the amount of compensation shall be twice the price of goods purchased or the cost of receiving services".

The different views on "buying fakes with knowledge" are mainly caused by the different understanding of the concept of "consumer" in Article 49 of the Consumer Law. So what is the real legislative intention of this article? Researcher Liang Huixing, a famous jurist, replied in an interview: "I personally participated in the drafting process of the Consumer Law. At the expert seminar on the draft consumer law, there were many people who opposed this article. Only He Shan (the Law Commission), Wu (the former China Consumers Association) and myself strongly advocated the formulation of this article in their speeches. At that time, we just wanted to mobilize the enthusiasm of fraudulent consumers to protect their rights and interests with economic interests and punish the operators who committed fraudulent acts. I never thought that someone would use this article to make a profit. There is also a professional counterfeiter besides operators and consumers. " Mr. Liang believes that "if the professional anti-counterfeiting class of' knowing and buying fakes' is allowed to develop blindly, it will form a profit-making industry with separation of public rights and private rights" and that "knowing and buying fakes" is "illegal".

However, Wu, one of "we" and "three people", said in a telephone interview that consumers are "natural enemies" of fake and shoddy goods. At that time, Qiao Xiaoyang and Hu, members of the NPC Law Committee, as well as representatives of many provincial and municipal people's congresses and consumer associations also agreed with Article 49 of the Consumer Law. Wu is "particularly confused and sad" that "knowing and buying fakes does not belong to consumers" has become a legal term. He believes that "knowing the fake and buying the fake" is a concept imposed on consumers by operators, which violates the basic spirit of the legislation of Consumer Law.

Another He Shan not only took the initiative to "buy fake goods" six years ago, but also "sued for protection" for Xu Beihong's two "Mapentou", which was finally supported by the court and won double compensation. Moreover, he believes that consumers' claims for fake goods are beneficial to society and should be encouraged. Personal counterfeiting not only protects consumers' rights and interests, but also reduces the cost of government counterfeiting, which should be paid attention to and supported.

Allow me to speak frankly. I appreciate researcher Liang's rationality and non-emotionality, and support "establishing a real government reward system for counterfeiting". However, before the Consumer Law has been amended to exclude professional counterfeiters who "know and buy fakes" from consumers, relatively speaking, in view of the flood of fakes in the China market, it is difficult to tell whether Li Kui jy is true or false, just like a classic line in TV series: "Now only mom is real, even dad is fake", I think "professional counterfeiters" came into being, not too many. Even if these brave "fake heroes" get rich first, what's the harm if we don't worry about being inferior because we buy daily necessities such as daily necessities? I only know that there is a "Wang Hai" in Tianjin, and I agree with his view that "buying fakes or counterfeiting will undoubtedly increase the risk cost of counterfeiters, help reduce fraud and benefit the society". It is reported that he has quit "counterfeiting" and is concentrating on writing a book; Nanjing has a "Yang Hong"; There is a "Wang Haidong" in Shanghai. Every large and medium-sized city in China has a representative figure, and a "class of professional counterfeiters" has emerged, effectively curbing the spread of counterfeiting. What is "social harm"? What's wrong with professional counterfeiters and fake and shoddy products mutually assured destruction, making China's market as clean as the United States, Japan and even some small developing countries?

Mr. Liang explained the "legislative intention" as the drafter of the Consumer Law, which made us understand Mr. Liang's own "original intention" in legislation. However, in the process of legislative struggle and compromise, more than one person participated in drafting the law, and the "original intention" of each drafter was extremely difficult. When the application of the law is controversial, it is difficult to find the "legislative intention", even for the drafters themselves.

Once the law is enacted, it is doomed to lag behind life, because the legal provisions are stable and social life is constantly changing. Law must keep pace with the times. To solve the contradiction between rigid legal provisions and mobile social life, it is necessary to explain the law. Zhang Mingkai, Law School of Tsinghua University, pointed out: "The phenomenon that can be seen everywhere is that scholars of different schools may have completely different interpretations of the same article and the same term." And "to judge what is a true interpretation and what is a true interpretation depends not only on whether it conforms to the literal meaning, but also on whether it conforms to justice" (Preface to Basic Positions of Criminal Law, China Legal Publishing House). It is in this sense that I think it is no accident that "according to the survey of a famous website, more than 90% of netizens agree with Wang Hai's' knowing fakes and buying fakes', and public opinion is obviously' one-sided'". Beijing Youth Daily (July 22, 2002), Interpretation of "Buying Fakes Without Protection", put it well: "The strong" public anger "shown by consumers about the rumor of" buying fakes without protection "is actually a microcosm of consumers' relatively weak position in the current consumption environment. "

As for judicial supervision, as we all know, the United States is supervised and interpreted by judges of the Federal Supreme Court. Charles Hugo, who served as the Chief Justice of the Supreme Court in1930-1941,has a frank and famous saying: We are under the Constitution, but the Constitution is what the judge said. The general idea should be: We respect the Constitution, but the Constitution.

China is a country of statute law rather than case law, and judges cannot make laws. In terms of judicial support for anti-counterfeiting and optimization of market purification, I think the reply of Shanghai Higher People's Court supporting Wang Haidong's anti-counterfeiting is very valuable and worth popularizing.

65438+ Reply of Shanghai Higher People's Court on the case of product quality dispute between Plaintiff Wang Haidong and Shanghai Zhenzhi Tourism Shopping Center on April 8, 1998: "It is not illegal for Plaintiff to buy cordless telephone from Defendant. The cordless telephone sold by the defendant to the plaintiff did not have the "network access license" issued by the Ministry of Posts and Telecommunications, nor did it obtain the "model approval letter of cordless electric transmitting equipment" issued by the State Radio Regulatory Commission, which was a product prohibited from being sold by national laws, regulations and policies. This behavior of the defendant is a fraud to unspecified consumers. Operators who violate the law should not only accept administrative punishment, but also bear civil liability to consumers. Therefore, this case should be based on Article 49 of the Consumer Protection Law, and the defendant should be ordered to bear the responsibility. "

It is precisely because of this clear-cut and unusual reply that the courts at all levels in the city are required, no matter who the buyer of the goods is, whether he knows the fake goods and whether he needs personal life. Any operator who constitutes fraud after reporting and examination shall apply Article 49 of the Consumer Law to refund the purchaser. This makes the Shanghai market relative to the markets all over the country, although it can't be said that fake and shoddy products are extinct, it does purify and optimize the shopping environment and law enforcement environment. Isn't this obvious and well known? It is suggested that except that "one party intentionally informs the other party of false information, or intentionally conceals real information to induce the other party to make a wrong expression of intention, it can be considered as fraud" (Article 68 of the Supreme People's Court's Opinions on Unequal Execution), it should be extended to Article 49 of the Consumer Law, and the reply of the Shanghai Higher People's Court should be cited for reference and application in the national court system.

Didn't we advocate learning from foreign advanced experience and say that he can attack jade with stones? Pinkerton Company, which is famous for its financial security industry, entered the "counterfeiting" market in China in the name of "investigation company" from 65438 to 0992. It is said that more than 80% of the company's business is concentrated on "counterfeiting". The Quality Brand Protection Committee of China Association of Enterprises with Foreign Investment is the largest committee in China to protect the brands of 74 multinational companies such as Procter & Gamble and Unilever. Among them, P&G loses 65.438+0.2 billion counterfeit goods every year, and Unilever loses 340 million counterfeit goods every year. As a professional counterfeiter, it is not only legalized, but also realized scale and enterprise. Since foreigners have not only become an enterprise under our eyes, but also become the main business of a market industry, why don't we simply "take" their experience to learn, and even today we have to endlessly argue whether it is legal to "buy fakes knowing them" and whether they are protected by law?

Finally, I appeal to "professional counterfeiters", that is, counterfeiters who make a living by using Article 49 of the Consumer Law, to admit that their actions are not only reasonable but also legal. I totally agree with the Legal Daily (July, 2002 18) that "it is justified to ask for compensation for buying fakes while knowing them". Because "from the legal point of view, it is a manifestation of the importance and protection of citizens' individual rights in a society ruled by law to admit that those who know and buy fakes are consumers. In a society ruled by law, citizens enjoy the right and freedom to possess, control and use their legitimate property according to law, and no other institution or individual has the right to examine citizens' motives for spending money. Legally speaking, the contrast between public opinion's one-sided support for the idea of knowing and buying fakes and the attitude of some merchants who sell fake and inferior commodities that they hate is enough to distinguish people's hearts from their backs. Therefore, legislation should give a green light instead of a red card for the act of buying fake claims. " Please allow the dog's tail to continue marten; Not only legislation, but also judicature, administration, law and lawyers, including the media.

To sum up, in order to purify the China market, for the sake of China's export integrity and for the sake of China's spiritual civilization, there is no choice but to effectively crack down on counterfeiting. "Counterfeiting" is the last word and the basis and premise for judging right and wrong. In addition to relying on the government, relying on various industries, including the Consumers Association, we must also mobilize the whole society to crack down on all fraudulent acts, including counterfeiting and selling fakes. We should encourage, support and legalize the anti-counterfeiting professionals who "know and buy fakes", and we should not discriminate, exclude or deny them.