Keywords: consumer rights consumer rights dispute arbitration
I. Introduction
With the deepening of reform and opening up and the rapid development of economy, the problem of consumers' rights and interests in China is becoming more and more serious. Events that harm consumers' interests are very prominent. The act of infringing consumers' unfair competition not only disturbs the social and economic order, but also dampens the enthusiasm of legitimate producers and operators, leads to consumer complaints and damages the country's international reputation. 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. In order to protect the legitimate rights and interests of consumers, China has promulgated a series of laws and regulations to protect consumers' rights and interests. For example, price law, trademark law, advertising law, food hygiene law, drug administration law, product quality law, consumer rights protection law and so on. In particular, the Consumer Protection Law has become a strong backing for consumers to protect their legitimate rights and interests. Through the analysis and comparison of five ways to protect consumers' legitimate rights and interests in the Law on the Protection of Consumers' Rights and Interests, this paper points out a clear idea for consumers to protect their legitimate rights and interests, and on this basis, puts forward some suggestions on establishing and perfecting the legal system for the protection of consumers' rights and interests.
Second, negotiation and settlement.
Reconciliation refers to a way for consumers and business operators to distinguish their responsibilities through friendly consultations on the basis of equality and voluntariness, gain mutual understanding, and finally reach a fair and reasonable agreement to solve consumer disputes. Negotiation settlement refers to the negotiation and exchange of opinions between consumers and business operators on the basis of equality and voluntariness after a dispute occurs, and finally a solution to the dispute is reached. When consumers find that their rights and interests are infringed, or disagree with the operators on issues related to their own interests, they can take the initiative to contact the operators and put forward their own requirements and opinions. This method is simple, efficient and economical, and most of the consumer disputes involved are disputes with small subject matter and simple case. Negotiation settlement is the most common in real life. If this method is accepted, the legitimate rights and interests of consumers will be protected, the profits and goodwill of operators will not be damaged, and the procedure is simple, saving time and effort. This way will not have any negative impact on the development of market economy and the stability of social order. Compared with other methods, it has the lowest cost and is an ideal way for consumers and operators. Therefore, it is also the first choice for consumers and operators all over the world to solve disputes. But the effect of this method mainly depends on the personal strength of consumers and the attitude of operators. In the process of negotiation between the two sides, because the two sides are in an interactive relationship, only when the two sides follow the principle of honesty and credibility can a settlement agreement be reached on the basis of balanced interests. Compared with powerful operators, consumers are in a weak position and cannot compete with dominant operators. Operators put the interests of consumers in the first place and solve problems for consumers. If the operator does not keep his word, he may shirk his responsibility and the interests of consumers will not be guaranteed. The disadvantage of negotiation and settlement lies in the lack of national coercion, which may make consumers spend energy and time when they meet irresponsible operators, but the problem remains unsolved. In this case, we should seek other better solutions.
Three. mediate
Mediation refers to a way for the parties to reach an agreement on related issues through voluntary negotiation with the support of a third party to resolve disputes. This is a long-standing folk solution, in which consumer association mediation is the most formal. Consumer Association mediation refers to the way that consumers and operators submit disputes to consumer associations for mediation, and the two sides negotiate and mediate with each other to reach a settlement of disputes. Mediation is different from negotiation between consumers and operators. Only consumers and business operators participate in negotiation and reconciliation, and mediation involves consumers, business operators and consumer associations, and mediation is conducted by consumer associations. At this time, the consumer association does not represent the interests of any party, and it must be mediated fairly. In addition, consumer associations should fully respect the opinions of the parties in the mediation process. No matter whether the mediation reaches an agreement or not, it should be negotiated by the parties themselves. If a mediation agreement is reached, that is, the two parties automatically perform the agreement, and the consumer association may not enforce it. Consumers Association can also provide a reference scheme for both parties to resolve disputes in the mediation process, but it cannot make a decision on behalf of both parties to the agreement.
In China, consumer associations are the link between the state and consumers. Consumers' associations at all levels have widely absorbed representatives from state government agencies, which has opened up an effective way for consumers' associations to win state support for the protection of consumers' rights and interests. Starting from 1983, the International Federation of Consumer Organizations designated March 15 every year as "International Consumer Rights Day". After the establishment of Consumers Association in the State Council in February 1984, consumer associations at provincial, municipal and county levels were established one after another. At present, more than 5,000 consumer associations and corresponding organizations have been established all over the country, and hundreds of thousands of consumer complaints from all over the country are accepted every year. On behalf of consumers, Consumers Association negotiated and mediated with all parties to save consumers more than 4 million yuan in economic losses. Entrusted by consumers, consumer associations represent consumers' interests and are consumers' agents. Accepting consumer complaints, solving problems for consumers and handling them is an important task for consumer associations to directly help consumers and safeguard their legitimate rights and interests. The so-called consumer complaint means that consumers are infringed in the process of purchasing or using goods or receiving services, and the pre-tender amount is often small, so consumers are unwilling to spend too much time, money and energy to apply for arbitration to an arbitration institution or bring a lawsuit to a people's court. If these trivial matters are not resolved in time, they will often condone illegal operators to continue to infringe on the legitimate rights and interests of consumers.
Not all consumer complaints are disputes. Sometimes, consumers just want to stop the unfair competition of some operators, and do not necessarily ask the operators for compensation. It can be said that the mediation of consumer associations has played a very important role in the overall legitimate rights and interests of consumers. It relieves some contradictions between consumers and operators, shoulders part of the social burden, and is also an indispensable lubricant in the construction of market economy. Mediation by non-governmental organizations is an important way to protect consumers' rights and interests not only in China, but also in other countries. However, consumer associations also have some shortcomings. Because consumer associations and other non-governmental organizations have no legal coercive power and deterrent power in practical work, they are often unable to do so, which greatly limits their role. Therefore, we can only rely on administrative organs or judicial organs to solve the complaints of operators who are disgusting, dishonest and produce fake and shoddy products.
Four. complain
Administrative appeal refers to the request made by citizens or legal persons to administrative organs to protect their legitimate rights and interests. After the administrative appeal is filed, the administrative organ makes a decision to deal with it according to law, and the administrative organ solves a certain range of disputes of a civil nature, which belongs to a type of administrative ruling. The state administrative organ is the executive organ of the state power organ, and most of the laws and regulations that have been formulated at present should be exercised by the state administrative organ. The economic supervision of administrative organs occupies a dominant position in the national economic supervision system. In the whole construction of national supervisory organs, the organs that improve the socialist legal system, protect consumers' legitimate rights and interests according to law and directly protect consumers' rights and interests are the administrative departments for industry and commerce and their branches responsible for the comprehensive management of general goods and services; The food hygiene department is responsible for the quality of food, medicine and cosmetics; The price department is responsible for commodity prices or service charges; Technical supervision departments are responsible for commodity quality, service standards and commodity measurement. China's Consumer Protection Law stipulates that "people's governments at all levels should strengthen leadership, organization and coordination, and urge relevant administrative departments to do a good job in protecting consumers' legitimate rights and interests. "and stipulates that;" People's governments at all levels should strengthen supervision to prevent the occurrence of behaviors that endanger consumers' personal and property safety. Timely stop acts that endanger the personal and property safety of consumers. "In addition, Article 28 of the Law on the Protection of Consumer Rights and Interests clearly stipulates that" the administrative departments for industry and commerce of the people's governments at all levels and other relevant administrative departments shall, within their respective functions and powers, take measures to protect the legitimate rights and interests of consumers in accordance with the provisions of laws and regulations. The relevant administrative departments should listen to the opinions of consumers and other social groups on the trading behavior of operators and the quality of goods and services, and investigate and deal with them in a timely manner. " Therefore, the State Administration for Industry and Commerce has formulated some corresponding administrative regulations, such as the Interim Measures for the Administration for Industry and Commerce to Accept Consumer Complaints, the Measures for Punishment of Consumer Fraud, and the Implementation Measures for the Administration for Industry and Commerce to Handle Consumer Complaints. The administrative departments of industry and commerce, price, health and quality inspection actually perform the functions of protecting consumers' legitimate rights and interests, and the main factors that make them an important way to protect consumers' rights and interests are:
(1) From the perspective of the development of market economy, in the market economy, in order to pursue their highest economic interests, operators sometimes harm social interests, including the interests of consumers. If it cannot be solved by the market itself, the government needs to act as a "referee" to maintain the market competition order and ensure the rapid and healthy development of the market economy. Solving consumer complaints by administrative organs is a maintenance of market economy competition, which has been proved to be a quite effective maintenance method by a large number of practices.
(2) From the perspective of social interests, through the negotiations between consumers and the administrative department, the administrative department can use enforcement to crack down on those operators who harm consumers and produce fake and shoddy products in time. The administrative department not only protects the legitimate rights and interests of consumers, but also improves the working efficiency of administrative organs. In particular, the administrative department for industry and commerce is responsible for the supervision and management of commodities in the market circulation field. Doing a good job of consumer complaints will provide good data for the country's economic macro-control and lay a solid foundation for the prosperity of the market economy. If the administrative department for industry and commerce is given the power of administrative adjudication according to the legislative model of environmental protection law, the industrial and commercial administrative machine can better play its advantages of complete system and close contact with consumers and operators, handle disputes over rights and interests efficiently, prevent disputes from expanding, and stop operators from violating consumers' rights and interests in time.
(3) From the perspective of consumers' interests, there are many advantages in solving disputes between consumers and operators by means of complaints; 1. Compared with negotiation and mediation, the complaint procedure is more formal and more reliable for consumers. The Interim Measures for the Administration for Industry and Commerce to Accept Consumer Complaints stipulates the procedures for the administration for industry and commerce to accept consumer complaints, including time limit and avoidance system. These procedural provisions ensure the correctness and reliability of the administration for industry and commerce in handling administrative complaints, so consumers can safely submit disputes to the administration for industry and commerce for settlement. 2. It will be more economical to solve consumer disputes through appeal. The Interim Measures for the Administration of Industry and Commerce to Accept Consumer Complaints stipulates that the expenses of administrative negotiation shall be borne by the losing party. For small consumer disputes, it will be more beneficial to consumers to solve them through appeal. There will be no consequences of winning the case and losing money. 3. In addition, the complaint is efficient and fast. The Implementation Measures of the Administration for Industry and Commerce for Handling Consumer Complaints stipulates that it takes 60 days for ordinary procedures to solve consumer disputes, and simple procedures can be used for less controversial consumer disputes, which will take less time and be much more efficient than other protection methods.
Verb (short for verb) arbitration
Another way to solve consumer disputes is to arbitrate by arbitration institutions. Arbitration, also known as "arbitration", refers to the behavior that both parties to a dispute voluntarily submit their disputes to an arbitration institution for arbitration. The Arbitration Law of People's Republic of China (PRC) (hereinafter referred to as "Arbitration Law") adopted by the Ninth Session of the Eighth the NPC Standing Committee on1August 3, 1994, resolved consumer disputes. Compared with other ways to deal with consumer disputes, arbitration is jointly participated by consumers, business operators and arbitration institutions, but arbitration can only be applied if there is an arbitration agreement. It is a quasi-judicial activity with the advantages of fairness, authority, economy, rapidity and confidentiality.
According to Article 15 of the Arbitration Law: "The Arbitration Commission is a member of China Arbitration Association". An arbitration commission refers to an institution established according to law, which has the right to accept a certain range of economic disputes and conduct out-of-court arbitration according to the arbitration agreement. Arbitration Association is a legal person of social organization, which shows that China's arbitration commission is a non-governmental non-governmental organization. According to the provisions of the Arbitration Law, large and medium-sized cities in China, that is, where the people's governments of provinces, autonomous regions and municipalities directly under the Central Government are located, and other cities divided into districts that need to set up arbitration institutions, should set up arbitration committees, which have no hierarchical jurisdiction or regional jurisdiction. Because arbitration institutions are only established in cities with districts, it will be very inconvenient for consumers in other regions to solve disputes in this way. And as long as one party is unwilling to choose arbitration, the arbitration institution will not accept it. Therefore, this method is not favored by both parties to the dispute in China, and there are not many people who choose arbitration to solve consumer disputes now.
The United States is the first country to try to resolve consumer rights disputes through arbitration. 1968, with the support of the Ford Foundation, the American Arbitration Association established the National Dispute Resolution Center and established the arbitration system for consumer rights disputes, which began to operate nationwide. In the United States, some businesses often take arbitration as the first choice to resolve disputes through contracts, especially in family service institutions such as automobile sales, financial services and medical care, and the contracts of these institutions all contain arbitration clauses. If consumers and business operators are willing to choose arbitration as a way to solve consumer disputes, it will be a way that is beneficial to both society and market economy. Some cities in China have also begun to try to arbitrate consumer rights. For example, since Huzhou Consumers Association established the Consumer Dispute Arbitration Center in 2000, Huzhou Consumer Dispute Arbitration Center in Zhejiang Province has settled more than 70 disputes for consumers. Thanks to the efforts of China Consumers Association and local consumer associations, and after consultation with regional arbitration committees, China has set up arbitration committee branches based on consumer associations in Henan, Shandong, Hebei, Zhejiang, Liaoning and other places to deal with consumer disputes, especially small consumption disputes. Of course, in order to play a normal role, the arbitration mechanism of consumer rights needs to be recognized by the legal system and accepted by the existing arbitration law before its ruling can be implemented. Otherwise, the effectiveness of the arbitration award will only be equivalent to the current mediation book, and the consumer rights arbitration mechanism is just another copy of the existing coordination solution of the Consumers Association.
Litigation of intransitive verbs
In our country, consumers can also bring a lawsuit to the people's court, demanding the settlement of disputes. Litigation is the most powerful way to solve disputes. The court exercises judicial power on behalf of the state, and its judgment is mandatory. In addition, the court can enforce the effective judgment according to its own authority. Consumer litigation can be divided into civil litigation, administrative litigation and criminal litigation. Here, we generally mainly talk about civil litigation. Although this method is very powerful and effective, in practice, due to the following factors, civil litigation should not be the main way to solve consumer disputes.
(1) From the perspective of social interests, protecting consumers' rights and interests through civil litigation can only be the ultimate way to protect consumers, not the first choice. When consumers seek litigation to solve disputes, they will not only spend a certain amount of money, but also spend the judicial cost of the court. If all consumer disputes are settled by the judicial organs, the judicial organs will inevitably bear a heavy burden and the public interests will be damaged. Therefore, from the perspective of considering social interests, decentralized channels to solve consumer disputes will be more conducive to social development and stability.
(2) From the perspective of market economy, although China's market economy system has been improved, it has not yet fully embarked on the formal track, and a large number of unfair competition behaviors that infringe on consumers' rights and interests are flooding the market, which requires efficient and effective means to regulate the market. Obviously, it is more feasible to achieve this goal through administrative protection than through judicial means.
(3) From the perspective of consumers' interests: In China, the general consumers' awareness of rights is poor. When their rights are infringed, they often go away and are unwilling to go to court unless they have to. Moreover, some consumers lack understanding of the law, and most of the operators they face are large companies with strong financial resources. They lack confidence in whether they can win the case, fearing that not only will their losses not be compensated, but they will also cause greater waste of human and financial resources. With the popularization of the Law on the Protection of Consumers' Rights and Interests, especially the appearance of the phenomenon of "Wang Hai's counterfeiting", consumers' legal awareness of safeguarding their legitimate interests has been cultivated. According to the current laws of our country, all the expenses of consumers in litigation shall be borne by the complainant. However, due to the limited income of consumers, even if they win the case, according to the provisions of Article 49 of the Consumer Protection Law, they can only go to double indemnity at most. For those small consumption disputes, it is obviously not worth the loss for consumers to safeguard their legitimate rights and interests through litigation. Obviously, the high litigation cost has become a stumbling block for consumers to choose civil litigation to safeguard their legitimate rights and interests.
With the continuous improvement of the state's protection of consumers' rights and interests, especially the promulgation of some laws and regulations, such as "Several Provisions on Evidence in Civil Litigation in the Supreme People's Court" (Fa Shi [2001] No.33) and "Interpretation on Several Issues Concerning the Application of Laws in the Trial of Commercial Housing Contract Disputes" (Fa Shi [2003] No.7), consumers have a clearer legal basis in the field of civil litigation. Although the current civil procedure law of our country has the provisions of summary procedure, it is still cumbersome for relatively small disputes over consumers' rights and interests with many cases, and consumers are often unable to bear the drag of time-consuming and laborious litigation. Therefore, in the protection of consumers' rights and interests by procedural law, China should follow the example of foreign countries and set up small procedures to accept and solve disputes caused by defective products and disputes with small amount.
Seven. Concluding remarks
By comparing and analyzing five ways to protect consumers' rights and interests. The author thinks that in reality, consumers in China can choose their own corresponding solutions according to different objects and different situations when solving consumption disputes. The legal system of consumer rights protection should be based on administrative protection, supplemented by mediation and arbitration, with civil litigation as the last channel. At the same time, strengthen the standardization and improvement of administrative regulations to protect consumers' rights and interests, increase the intensity of administrative law enforcement and improve the level of administrative law enforcement. Pay close attention to the formulation of consumer assistance system. After the implementation of the consumer assistance system, the administrative organ protecting consumers' rights and interests may bring a lawsuit to the people's court, demanding that the offender be investigated for civil liability and compensate the victims for their losses. In addition, social media and consumer movements can be used to widely publicize consumers' awareness of rights protection and form a good social atmosphere of "stressing honesty and anti-fraud" to resist counterfeit and shoddy goods and protect their legitimate rights and interests. Through public opinion, fake and shoddy goods will withdraw from the historical stage. With the advancement of China's legalization process, the market economy has been gradually improved, and consumers' awareness of rights protection has been continuously improved. The way to safeguard consumers' rights and interests will be more complete and efficient.