On the legal protection of consumers' rights and interests

With the development of economy and the popularization of "3. 15" publicity activities, consumers' awareness and ability of safeguarding rights are increasing day by day: it is not uncommon for an ordinary sweater to be priced at several hundred thousand yuan or even ten thousand yuan, while leather clothes with a little high grade are often thousands or even tens of thousands, from a simple haircut of several yuan to a haircut of120 thousand yuan today. Some merchants use the comparison psychology of consumers to deliberately mark the exaggerated prices of general commodities to lure some "big money" to give generously. A few days ago, Guizhou Metropolis Daily reported a news that a driver driving a Geely car came to an automobile decoration shop to buy a cushion, and he could bargain for 600 yuan, while a driver driving a Mercedes-Benz asked for the same cushion but opened it at 1200, saying that a good car should be equipped with a seat. As a result, he immediately paid for it and left. The fact that consumers' rights and interests are still damaged repeatedly shows that in order to effectively protect consumers' legitimate rights and interests, we must strengthen the research on the protection of consumers' rights and interests.

First, the history of consumer rights protection and the current situation of consumer rights protection in China

First of all, the so-called consumer rights and interests refer to the sum of the rights and interests enjoyed by consumers at a certain stage of social production development and when they carry out specific consumption behaviors and complete specific consumption processes under certain commodity economic relations and social systems. Secondly, with the development of social economy and the improvement of income level, consumer demand is growing day by day, and the concept of legal system is deeply rooted in people's hearts, and the protection of consumer rights and interests has been paid more and more attention by countries all over the world. This is mainly manifested in:

(1) Consumer protection organizations are constantly developing. The protection of consumer rights can be traced back to the consumer movement as early as possible-it is the pioneer of consumer rights protection organizations, which originated from the monopoly stage of developed capitalism and then spread to all countries in the world to become a global movement. After China's accession to the WTO, great progress has been made in the protection of consumers' rights and interests.

(2) Laws and regulations related to the protection of consumer rights and interests have been continuously improved, and consumer rights and interests have been legalized, standardized and expanded. Modern consumer protection legislation first began after the capitalist society entered the monopoly stage, and its rise was closely linked with the worldwide consumer protection movement. The legislative status of consumer rights protection has become an important symbol to measure the development of social civilization and the perfection of legal system construction in a country. [2] Of course, the consumer protection law not only includes special laws and regulations to protect consumers' rights and interests, such as consumer protection law, anti-unfair competition law, product quality law, food hygiene law, drug administration law, standardization law, measurement law, etc. It also includes relevant provisions or clauses scattered in civil, economic, administrative, criminal and other laws and regulations. This is a broad concept. [3] We know that one of the purposes of legal provisions is to establish certain rights and protect certain specific interests. At present, according to the reality of consumer rights protection, China focuses on protecting the following rights of consumers: (1) the right to choose. The right to choose is the legal guarantee to protect consumers' freedom of behavior and autonomy in their consumption life, and it is also the basic guarantee for consumers to realize their own consumption wishes. (2) the right to fair trade. First, consumers have the right to obtain fair trading conditions such as quality assurance, reasonable price and accurate measurement; Second, consumers have the right to refuse the compulsory trading behavior of operators. (3) the right to safety. Consumers have the right to demand that the goods and services provided by business operators meet the requirements of protecting personal and property safety. First, consumers' right to personal safety, that is, consumers' right to life and health is inviolable. The second is the right to property security, that is, consumers have the right to property inviolability. (4) the right to know. The right to know is the legal guarantee for consumers to know about goods and services and avoid being damaged by blindly buying, using goods and receiving services. (5) the right to claim. The right to claim compensation is a kind of relief right given to consumers by law when their rights and interests are damaged, so that consumers can get compensation from operators for the damage they have suffered, which is not only an appropriate compensation for consumers, but also a punishment for fraud by operators. In particular, Article 49 of the Law on the Protection of Consumers' Rights and Interests creates a punitive damages clause, which fully embodies the protection of consumers' rights and interests by law. (6) the right to be respected. Consumers have the right to respect their personal dignity and national customs when purchasing and using commodities and receiving services. The right to be respected should emphasize the respect for the personal dignity of consumers and resolutely stop the violation of consumers' personal rights. The above rights fully reflect that China attaches great importance to the protection of consumers' rights and interests. Protecting them is not only the responsibility of the whole society, but also the responsibility of consumers to protect themselves according to law. China has formed a series of legal systems to protect consumers' rights and interests, including the Consumer Protection Law, the Product Quality Law, the Food Hygiene Law and the Anti-Unfair Competition Law, combining with the national conditions of China, so that consumers' rights and interests can be effectively protected legally. Second, the new measures of China's consumer rights protection system

In the past two years, with the promulgation of some new laws and regulations in China, the gaps in the field of consumer rights protection in China have been continuously filled, and the protection of consumer rights in China has reached a new level.

1, burden of proof. The principle of proof in China's civil litigation is "whoever advocates, who gives evidence". The Provisions of the Supreme People's Court on Evidence in Civil Litigation (Fa Shi [20065438+0] No.33) involves the protection of consumers' rights and interests, especially the inversion of the burden of proof for "medical disputes" and "concurrent risks". The Interpretation clearly stipulates that medical institutions shall bear the burden of proof that there is no causal relationship between medical behavior and damage results and that there is no medical fault in tort litigation caused by medical behavior. As for the inversion of burden of proof in medical disputes, according to the explanation of relevant persons in the Supreme People's Court, it means that when patients put the hospital in the dock, the hospital must first prove that it is "innocent". If the hospital can't produce evidence, the court will judge the hospital to lose the case. This is undoubtedly a concern for vulnerable groups, which reflects China's attention to ordinary consumers. In addition, "* * * the same danger" breaks through the previous definition and applies to the field of consumer protection. That is, in litigation, the victim only needs to prove that several people have committed dangerous acts, and such acts have caused damage to the plaintiff, and each of several people must bear the burden of proof for acts that are not his own. (4) That is to say, the person who commits the dangerous behavior is required to bear the burden of proof that there is no causal relationship between his behavior and the damage result. Moreover, Article 4 of this Interpretation also stipulates the inversion of the burden of proof, such as "product liability", that is, "the producer of the product shall bear the burden of proof in an infringement lawsuit that causes personal injury due to a defective product".

2. Commercial housing. Commercial housing fraud accounts for a large proportion of consumer complaints over the years. Hebi City Court of Henan Province applied the Consumer Protection Law to double indemnity's fraud case of selling houses; Some local governments have issued the regulation that "housing sales are priced according to the interior area", which gradually melted the "hard ice" that once stood in front of consumers. The promulgation of "Interpretation on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes" provides a clearer legal basis for the application of "double return" in commercial housing disputes. Paragraph 2 of Article 14 of this explanation stipulates: "If the absolute value of the area error ratio exceeds 3%, the buyer's request to terminate the contract and return the paid house purchase price and interest shall be supported. The buyer agrees to continue to perform the contract. If the actual area of the house is larger than the area agreed in the contract, the buyer shall make up the house price at the agreed price for the part with the area error ratio within 3% (including 3%), and the seller shall bear the house price for the part with the area error ratio exceeding 3%, and the ownership shall belong to the buyer; If the actual area of the house is less than the area agreed in the contract, the part with the area error ratio less than 3% (including 3%) and the interest shall be returned by the seller to the buyer, and the part with the area error ratio greater than 3% shall be returned by the seller to the buyer twice. "

3. Property management. The goal of "Property Management Regulations" is to solve the increasingly fierce contradiction between residents and property owners in cities, safeguard the rights of owners and substantially promote the development of owners' committees.

4. Compensation for mental damage. In the field of consumer complaints, there is no specific legal provision on compensation for mental damage. However, the Supreme People's Court's Interpretation on Several Issues about Determining the Liability for Compensation for Spiritual Damage in Civil Tort clearly details the protection of personal interests. If consumers are damaged in the process of consumption, there is a clear basis for proposing compensation for mental damage.

5. Personal injury compensation. Regarding the scope, calculation standards and methods of personal injury compensation, in judicial practice, we often refer to the provisions of the Measures for Handling Road Traffic Accidents formulated by the State Council on September 22nd, 199 1. The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases largely unifies the adjudication rules of personal injury compensation and clarifies the scope and standards of compensation, which is not only conducive to the timely and fair trial of cases by the court, but also conducive to fully protecting the personal rights of victims and balancing the interests between victims and perpetrators, so that consumers can have a clearer scope of compensation when they suffer personal injuries. [5] As stipulated in the first paragraph of Article 6 of this Interpretation: "If a natural person, legal person or other organization engaged in business activities such as accommodation, catering, entertainment or other social activities fails to fulfill its security obligations within a reasonable range and causes personal injury to others, the people's court shall support it." This makes consumers' right to safety have a clear legal basis for compensation.

6. Protection of personal privacy. The Regulations of Shanghai Municipality on the Protection of Consumers' Rights and Interests brings consumers' personal privacy into the scope of protection for the first time, which makes the provisions of the Constitution more specific in specific departmental laws.

Three, some suggestions to improve China's consumer rights protection system

1. Perfection of legal protection system

(1) Improve relevant legislation, especially in the field of services. (2) Strengthen law enforcement. We must abide by the law, strictly enforce the law, and prosecute those who violate the law to ensure the orderly operation of the market. (3) Strengthen the coordination and cooperation of administrative departments to better protect consumers' rights and interests with less social investment. (4) Pay close attention to the formulation of consumer assistance system. (5) The popularization and promotion of legal knowledge should form a continuous and relatively solidified mode.

2. Enhance the integrity of the operators.

"Honesty" means that operators and market intermediaries are required to take the principle of honesty and credit as the basic business ethics and fundamental code of conduct in market activities, earnestly fulfill their obligations stipulated by laws and regulations such as the Law on the Protection of Consumers' Rights and Interests, fully and fully fulfill their agreed obligations with consumers, keep their promises, oppose evading their own obligations and all kinds of commercial fraud, and promote the formation of a market supervision mechanism that is "trustworthy and glorious, and shameful in breaking promises". Consumers are directly facing the operators, who are the information-oriented parties. Therefore, the integrity of operators is directly related to the vital interests of consumers. After all, the contents stipulated by laws and regulations are limited and should be supplemented from the moral aspect. Under the condition of market economy, market economy is essentially a credit economy and a contract economy. Without honesty, there will be no healthy and developed market economy. Market economy is based on the exchange between different stakeholders, and the main way of economic activities is credit transaction based on the principle of honesty and credit. From this point of view, honesty is the basic business ethics of merchants and the greatest wealth of enterprises. Only by operating in good faith, truly treating consumers as gods and safeguarding consumers' legitimate rights and interests everywhere can we win consumers' trust in businesses and let them rest assured that they will no longer be wary and skeptical. From honest management to assured consumption, it has actually formed a favorable situation for both merchants and consumers, and will also make our market order enter a virtuous circle.

3. Improve the quality of consumers themselves

The first is to raise consumers' awareness of rights protection. Consumers in China, especially those in rural areas, have a weak awareness of rights protection. According to statistics, when consumers' rights and interests are damaged, only 22.3% of consumers can take the initiative to complain, and most consumers feel unlucky. Raising awareness of rights protection is the first step to protect consumers' legitimate rights and interests, for example, don't give up protecting their legitimate rights and interests because of small losses and fear of trouble. Of course, the improvement of consumers' awareness of rights protection is not a day's work, which requires the publicity of consumer knowledge in the whole society, the development of consumer movements and the improvement of the cultural quality and legal awareness of the whole people. Therefore, it is necessary to gradually popularize the propaganda of consumer rights protection knowledge in the whole nation, starting from me and starting now, and safeguarding our legitimate consumer rights and interests.

The second is to enhance the ability to protect consumer rights. Consumers should strengthen the study of relevant laws and regulations, improve their level of understanding, and at the same time strengthen the study of relevant commodity knowledge to understand relevant commodity information, such as production date, shelf life, shelf life, quality, instructions for use, etc. , actively make preparations before consumption; Consumers must ask for and keep relevant evidence, and avoid unfounded statements, such as invoices, service contracts and other original documents, as the basis for complaints when consumers' rights and interests are damaged. In the process of handling consumer disputes, the author often finds that many consumers, especially rural consumers, are full of grievances when their legitimate rights and interests are violated, but they just can't produce relevant evidence, which increases the difficulty of complaints and litigation risks. Therefore, through publicity and education, consumers should master the relevant procedures, contents and requirements of rights protection, complaints and litigation, and enhance their ability to safeguard their own rights and interests.

4. Provide convenience for consumers to complain and solve consumer disputes, and create conditions for protecting consumers' rights and interests.

First, the job of the Consumer Protection Committee is to safeguard the legitimate rights and interests of consumers. Therefore, the staff of the Consumer Protection Committee should truly establish the idea of "taking consumers as the foundation", earnestly perform their duties in the process of governing for the people, earnestly take the protection of the legitimate rights and interests of the people's consumption as their own responsibility, eliminate the wrong concept of "doing big cases for the people and being pragmatic, and doing small cases doesn't matter", improve work efficiency, correct work style, think about what the people think and worry about what the people are anxious about.

Second, the procedure is simple and quick. For small disputes, it can be carried out in accordance with the relevant provisions of summary procedures and special procedures, and the methods of independent trial, first trial and final trial can be implemented, so that the parties can get the result of the case in the shortest time, which is conducive to reducing the energy consumption of consumers in litigation.

5. Do a good job in all-round supervision.

The first is to strengthen government supervision. (1) The government implements professional license management for some service industries (such as medical treatment, home appliance maintenance, beauty, agricultural machinery, agricultural materials, etc.). ) is very important to the quality of service, but the average consumer lacks enough professional knowledge and strictly controls them. (2) It is difficult for a single consumer to identify the consumption safety of food, medicine, transportation and other products with personal knowledge and experience, and once the identification is wrong, the consequences are often at the expense of life or health. Therefore, the government must formulate and strengthen product quality and safety standards. The second is to strengthen news supervision. With the help of radio, television, newspapers and other news media, we will regularly expose the results of product quality sampling, give full play to the supervisory role of news media, and form a powerful deterrent force of public opinion. Implement a reward system for reporting; Mobilize social organizations and consumers to actively participate in market supervision and inspection. The third is to play the role of social supervision. Use social media and consumer movements to widely publicize consumers' sovereignty awareness, form a good social atmosphere of "stressing honesty and anti-fraud", resisting fake and shoddy goods and protecting legitimate rights and interests, and let fake and shoddy goods withdraw from the historical stage through public opinion.

In a word, protecting consumers' rights and interests conforms to the spirit of the times and is the need to practice Theory of Three Represents and promote the construction of social credit system in the new period. The annual theme of safeguarding consumers' rights and interests in 2004 formulated by China Consumers Association is "Honesty? Safeguarding rights ":what is needed to establish and improve the consumer rights protection system is seriousness, honesty and trustworthiness;" "It is our more ambitious goal to improve specific details, earnestly safeguard consumers' rights and interests and strive to develop the economy.