Consumer fraud refers to the behavior that business operators deceive and mislead consumers by false or other improper means in the process of providing goods or services, which damages the legitimate rights and interests of consumers.
According to the Law on the Protection of Consumers' Rights and Interests and the Measures for Punishment of Infringement on Consumers' Rights and Interests of the State Administration for Industry and Commerce, we can judge whether the behavior of operators constitutes consumer fraud from three aspects.
1. Means used by operators when providing goods or services
According to the provisions of Article 16 of the Measures for Punishment of Infringement on Consumers' Rights and Interests, if an operator commits one of the following acts, it can be considered as fraud: doping or adulterating the goods sold, passing the fake as the real, passing the inferior as the good, and passing the unqualified goods as qualified goods; Selling goods that have been explicitly eliminated and stopped by the state; Deliberately using unqualified measuring instruments or destroying the accuracy of measuring instruments in providing goods or services; Failing to provide goods or services as agreed, defrauding consumers of prices or expenses; Not providing goods or services with real names and marks; Selling goods or services by false or misleading commodity descriptions, commodity standards, physical samples, etc.; Making false or misleading on-site explanations and demonstrations; Deceptive sales induction by means of fictitious transactions, false bids, false comments or hiring others; Selling goods or services at false "clearance price", "sale price", "lowest price", "preferential price" or other deceptive prices; Selling goods or services by means of false "prize sales", "repayment of principal" and "experience sales"; Falsely claiming that genuine products sell goods such as "processed products", "defective products" and "unqualified products"; Exaggerate or conceal information such as quantity, quality and performance that have a significant interest in consumers and mislead consumers; Misleading consumers by other false or misleading propaganda methods.
2. Does the operator's behavior mislead consumers?
To judge whether the operator's behavior misleads consumers, we should take the cognitive level and recognition ability of ordinary consumers as the standard. If this behavior is enough to mislead ordinary consumers, it constitutes fraud. If this behavior is not enough to mislead ordinary consumers, individual consumers should prove that they have misunderstood and advocate fraud. When an operator commits fraud, it will generally harm the legitimate rights and interests of consumers. However, consumers are not required to have actual losses or damages to identify consumer fraud. As long as the operator's behavior is enough to mislead consumers, it can be identified as fraud.
3. Does the operator have the subjective aspect of committing fraud?
Although laws and regulations do not clearly stipulate that fraud must be subjective and intentional, literally speaking, fraud is to cover up the truth and mislead consumers, and the word "fraud" itself has revealed that operators have subjective and intentional. Therefore, in the following six situations, business operators can't prove that they didn't cheat or intentionally mislead consumers, which is fraudulent: the goods they sell or the services they provide don't meet the requirements for protecting personal and property safety; they sell invalid or deteriorated goods; they forge goods of origin; they forge or falsely use other people's factory name and address; they tamper with the production date; they sell goods with forged or falsely used quality marks such as certification marks; they sell goods or provide services that infringe on the exclusive right of registered trademarks of others; and they forge or alter them.
Second, how to obtain evidence of consumer fraud
According to the civil procedure law and the rules of evidence in civil procedure, the parties have the responsibility to provide evidence for their claims. Evidence is the premise and powerful weapon for consumers to protect their rights.
Combined with the characteristics of consumer disputes, the author thinks that consumers should collect evidence from three aspects: evidence reflecting the formation and development of legal relations between the parties, such as purchase invoices, service invoices, sales orders, warranty certificates, payment receipts, quality commitment letters, contract documents and so on. ; Evidence reflecting the fact of fraud and damage, such as product leaflets, promotional activities, samples of problematic products, and conclusions of inspection and appraisal of subject matter. ; Evidence that can prove economic losses, such as loss list, documents, on-site investigation records, etc.
In the practice of consumption, consumers often ignore the preservation of online evidence. The Supreme People's Court's Interpretation on the Application of the Civil Procedure Law of People's Republic of China (PRC) clearly stipulates that audio-visual materials include audio-visual materials and video materials. Electronic data refers to information formed or stored in electronic media by means of e-mail, electronic data exchange, online chat records, blogs, Weibo, SMS, electronic signature and domain name. Audio and video materials stored in electronic media shall comply with the provisions of electronic data. As a result, information formed or stored in electronic media, such as online chat records, Weibo, mobile phone short messages, etc. Can be used as evidence in civil cases.