The national 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 Quality and Technical Supervision Bureau 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, 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. The counterfeiters are still there after the counterfeit goods are confiscated, and the counterfeiting equipment is destroyed. The counterfeiting technology is still there, but in a different time and place, the same counterfeiters will still produce the same fake 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 department, they will be confiscated at most. If consumers come to them, they can blame the counterfeiters and say "I don't know." "Rely on what you can, 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 whoever sells fake goods, whether he knows or does not know that what he is selling is fake, will be severely punished once verified. This makes merchants not only responsible for themselves when purchasing goods, but also responsible for consumers. 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 attracted public attention in domestic media after 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 Article 49 of the Consumer Rights and Interests Protection Law of the People's Republic of China on the so-called "refund one and compensate one", that is, double compensation: "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 the fakes and buying the fakes" continues to develop blindly, a profit-making industry will be formed that is independent of public and private rights and is dedicated to combating counterfeiting. "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 at that time, as well as representatives from many provincial and municipal people’s congresses and consumer associations. Wu Gaohan felt that “knowing and buying fake products 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" are allowed to "get rich first" and our generation does not have to worry about fakes when buying daily necessities: rice, oil, salt, sauce, vinegar and tea, what's the harm? ?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 counterfeit 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; "Yang Hong" was born in Nanjing; "Wang Haidong" was born in Shanghai.
Even if there is a representative figure in each of the large and medium-sized cities across the country, in order to effectively curb the proliferation of counterfeiters and shoddy products, a "class of professional anti-counterfeiters" has emerged. What is the "social harm" in that? Professional anti-counterfeiters and counterfeiters coexist* If ** is dead and the Chinese market is as purified as the United States, Japan and even some small developing countries, what's wrong with that?
Mr. Liang explained the "original intent of the legislation" as the drafter of the "Consumer Law" , let us understand the "original intention" of Mr. Liang himself at the time of legislation. However, legislation is a process of mutual struggle and compromise. There are more than one person involved in drafting the law, and the "original intention" of each drafter is also difficult to be the same. When the law is applied, When there is a dispute, it is very difficult to find the "original intention of the legislation." Even if it is a drafter's own interpretation, it is difficult to say that it is the "original intention of the legislation." If the "original intention" of two drafters is opposite, then what is the "original intention" of the drafter? Whose "original intention" is the "original legislative intention"?
Once the law is enacted, it is destined to lag behind life, because legal provisions are stable, but social life is constantly changing, and the law must keep pace with the times. , to resolve 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 think "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"" put it well: "This time, consumers have shown strong 'public anger' against the rumors of 'Buying fake products without protection'. In fact, it is 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 Erans Haghes, who served as chief justice of the court from 1930 to 1941, had a frank and shocking saying: We are under the Constitution, but the Constitution is What the Judges say it is. The general idea should be: We respect the (U.S.) Constitution, but it is up to the judges to decide what the Constitution is.
China is a country with written laws and not 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 Shanghai Higher People's Court's "approval" in support of Wang Haidong's fight against counterfeiting is very valuable and worthy of promotion.
On April 8, 1998, the Shanghai Higher People's Court "Reply on the Case of the Product Quality Dispute between the Plaintiff Wang Haidong and Shanghai Zhenzhi Tourist Shopping Center": "The plaintiff purchased a cordless phone from the defendant, which was not illegal. The defendant did not violate the law. The cordless phone sold 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 by national laws, regulations and policies. This act is an act of fraud against unspecified consumers. Operators who operate illegally should not only accept administrative penalties, but also bear civil liability to consumers. Therefore, the defendant in this case should be sentenced in accordance with the provisions of Article 49 of the Consumer Rights Protection Law. Responsibility."
It is precisely because of this clear attitude that the extraordinary "Reply" requires courts at all levels in the city to purchase goods regardless of who is buying the goods, regardless of whether he knows that they are fake or not and has personal life needs. If an operator is found to have constituted fraud after reporting and review, Article 49 of the Consumer Law will apply, and the buyer will be refunded and compensated. This makes the Shanghai market, compared with markets across the country, although it cannot be said that fake and inferior products have disappeared, it has indeed achieved the purification and optimization of the shopping environment and law enforcement environment.
Isn't this witnessed and well-known? It is suggested that the Supreme People's Court should consider "where one party intentionally informs the other party of false information, or deliberately conceals the true situation, and induces the other party to make a wrong expression of intention, it can be deemed as fraud." (Article 68 of the Opinions on the Implementation of the General Principles of Civil Law) is extended to Article 49 of the Consumer Law, and will be cited in the Shanghai High Court’s Approval to promote the reference application of the national court system.
Aren’t we advocating learning from foreign advanced experience and saying that jade can be captured from other rocks? Now the Pinkerton Company in the United States, which is world-famous for its financial security industry, has entered the country in the name of "investigation company" since 1992. In China’s “anti-counterfeiting” market, it is said that more than 80% of the company’s business is focused on “anti-counterfeiting”. The Quality Brand Protection Committee of the China Association of Enterprises with Foreign Investment is the largest domestic organization that protects the brands of 74 multinational companies, including Procter & Gamble and Unilever. Among them, Procter & Gamble loses 1.2 billion worth of fake goods every year, and Unilever loses 340 million worth of fake goods every year. As professional anti-counterfeiters, they have not only been legalized, but also achieved scale and enterprise. Since foreigners have become not only an enterprise but also the main business of a market industry under our noses, why don't we directly "use" their experience and learn from it? Even today, we are still arguing endlessly about "knowing fakes and buying fakes" "Is it legal or not, and is it protected by law?
Finally, we call on "professional anti-counterfeiters", that is, those who use Article 49 of the Consumer Law to make a living, to recognize that their behavior is not only reasonable but also reasonable. should be legalized. I fully agree with the article "Legal Daily" (July 18, 2002) "justifying the practice of claiming for fake goods and buying fake ones." Because "Legal speaking, recognizing that those who know and buy fakes are consumers is a manifestation of the importance and protection of citizens' personal rights in a society ruled by law. In a society ruled by law, citizens enjoy the right to possess, control and use their legal property in accordance with the law. No other institution or individual has the right to examine citizens’ motivations for spending money. From a legal perspective, public opinion overwhelmingly supports the behavior of claiming for fake goods and some merchants who sell fake and shoddy goods hate it. The comparison of attitudes is enough to tell where people stand. Therefore, legislation should give a green light rather than a red card for claims made by knowingly buying fake products. "Please allow the dog's tail to continue; not only the legislation, but also the judiciary, administration, law, lawyers, and the media are all talking. This is how it should be for gold and silver.
In short: For the purpose of purifying the Chinese market, for the integrity of China’s exports, and for the sake of China’s spiritual civilization, we have no choice but to effectively combat counterfeiting and fraud. "Cracking down on counterfeiting" is a hard truth and the basis and premise for judging right and wrong. In addition to relying on the government and various industries, including the Consumers Association, to combat counterfeiting, the entire society must be mobilized to attack all fraudulent activities, including the production and sale of counterfeit goods. Anti-counterfeiting professionals who "know about fakes and buy fakes" must be encouraged, supported, and legalized, and no discrimination, exclusion, or denial is allowed.