Consumer motivation does not affect consumers safeguard legitimate rights and interests

case

In June 2012, Cong XX, the plaintiff, purchased "Shenqi oral liquid (xiaochanping oral liquid)" in Beijing Panjiayuan outpatient department (hereinafter referred to as Panjiayuan outpatient department) of Beijing Ciming Health Examination Management Group Co., Ltd. pan Jiayuan outpatient department exaggerated the indications and efficacy of drugs in the advertisement, seriously misleading and cheating consumers. Therefore, the lawsuit requires the defendant Panjiayuan clinic to return 450 yuan of payment, 450 yuan of compensation, and 1 yuan of compensation for mental loss.

The defendant Panjiayuan outpatient department argued that xiaocaiping oral liquid was a legal and qualified drug. Cong XX is not a consumer.

According to the notice of illegal drug advertisement issued by Beijing Drug Administration in March 2012, Shenqi oral liquid seriously misled and deceived consumers by exaggerating the indications of drugs and guaranteeing unscientific expression of efficacy. Cong XX said that the reason why he bought xiaocaiping oral liquid was that his Aunt Zhang XX had cancer and the medicine he bought had been taken by Zhang XX.

referee

After hearing, the Chaoyang District People's Court of Beijing rejected all the claims of Cong XX on the ground that it was unable to confirm the identity of Cong XX as a consumer.

Cong XX refuses to accept and files an appeal. After hearing, Beijing No.2 Intermediate People's court held that Cong XX was a consumer, and decided to cancel the original judgment, ordered Panjiayuan clinic to refund Cong Lisong 450 yuan of payment for goods and compensate Cong Lisong 450 yuan.

analyse and comment on

With the in-depth development of market economy in China, consumer economy plays an important role, and the issue of consumers' rights and interests has attracted more and more attention. At the same time, consumers' awareness of rights protection has been constantly enhanced, and the laws and regulations of the state to protect the rights and interests of consumers have been improving day by day. Article 2 of the law on the protection of the rights and interests of consumers stipulates that "the rights and interests of consumers shall be protected by this law when they purchase, use goods or receive services for their daily consumption." Generally speaking, consumers refer to those who buy, use goods or receive services for the needs of daily consumption. But how to establish the identity of consumers, the definition of life consumption is the first to bear the brunt. Among them, three issues need to be clarified, namely, the concept of life consumption, legislative purpose and consumption motivation should be taken as the elements to inspect life consumption.

1. On the concept of living consumption. One view is that living consumption only refers to the consumption of daily necessities; the other view is that living consumption refers to all consumption behaviors except production and operation consumption. I agree with the second view. According to the modern Chinese dictionary, consumption refers to the consumption of material wealth for production or living needs. Thus it can be seen that life consumption is different from production consumption, which refers to the behavior that people consume material wealth in order to survive and develop, including clothing, food, housing and transportation. Therefore, the concept of life consumption should not be limited to the consumption of daily necessities, but includes the consumption of various goods and services. As long as the consumption is not used for production and operation, it should belong to the category of life consumption.

2. The purpose of legislation on living consumption. The legislative purpose of the law on the protection of the rights and interests of consumers is to protect the legitimate rights and interests of consumers, maintain the social and economic order, and promote the healthy development of the socialist market economy. Therefore, the definition of life consumption should also conform to the legislative purpose. China's socialist market economy covers a wide range of aspects of consumer life. Therefore, the life consumption regulated by the consumer rights and interests protection law should also cover all aspects of social market economy consumption, which cannot be artificially compressed and limited.

3. The influence of consumption motivation on the recognition of life consumption. As mentioned before, life consumption is a kind of objective behavior judgment, which does not contain the consideration of subjective meaning. Therefore, the court should not take into account the consumer's motivation when shopping. The court should not accept the operator's defense. The outstanding performance is the dispute over the issue of knowing and buying fake for more than 20 years.

The author thinks that the consumption motive should not be involved in the life consumption. As long as the buyer of fake goods is not for production and operation, the behavior of buying goods or services should belong to the life consumption. The buyer of fake goods belongs to the consumer and is protected by the consumer rights and interests protection law. Article 3 of the provisions of the Supreme People's Court on Several Issues concerning the application of law in the trial of food and drug disputes implemented on March 15, 2014 clearly stipulates that "in case of disputes over the quality of food and drug, the buyer claims the rights from the producer and the seller, and the producer and the seller defend on the ground that the buyer knows that the food and drug have quality problems and still purchases, The people's court does not support it. " The regulation clearly reflects that the subjective state of consumers does not affect the life consumption or even the identification of consumers. Even if the consumer knows the fake and buys the fake, the consumer still has the right to claim compensation, and the court should support his claim according to law.

In this case, the Shenqi oral liquid purchased by Cong XX from Panjiayuan clinic in June 2012 is not used for production and operation, and its purchase behavior of drugs conforms to the concept of life consumption, so Cong XX's identity as a consumer should be recognized. Although Cong XX may have the problem of knowing in advance that the drug is suspected of false advertising, Cong XX's subjective state has nothing to do with the identification of life consumption itself. In the absence of evidence that Cong XX is a production and operation consumption, the court of first instance could not consider Cong XX's place of residence and the reason for purchase, so it would not consider Cong XX's purchase of Shenqi oral liquid as a domestic consumption. Cong XX does not belong to consumers and lacks facts and legal basis. Cong XX belongs to the consumers. Because the drugs sold in Panjiayuan clinic have false advertisement, according to the law, if the operator provides the goods or services with the act of publishing false advertisement, cheating and misleading the consumers, which causes the legitimate rights and interests of the consumers who buy the goods or receive the services to be damaged, it shall increase the compensation for the losses according to the requirements of the consumers The amount of compensation shall be twice the price of goods purchased or the cost of services received by consumers.

Therefore, the sale of the drug in Panjiayuan clinic constitutes fraud. Cong XX's lawsuit is based on the law, and the court of second instance changed its judgment accordingly, safeguarding Cong XX's legitimate rights and interests as a consumer.

Case No.: (2013) cmcz No. 25450, (2013) er Zhong min Zhong Zhong Zi No. 14088

Prepared by: Hu Jianyong, the second intermediate people's Court of Beijing