The current Law on the Protection of Consumers' Rights and Interests in China was passed by the Fourth Session of the Eighth NPC Standing Committee in People's Republic of China (PRC) on June 5438, 2003, and came into effect on June 5438, 2004. Since the implementation of this law, the rights and interests of consumers have been safeguarded to a certain extent, and the government has closer ties with the people. Among them, the spirit of "honesty and credit" in the Consumer Protection Law has promoted the healthy development of the market economy. Article 4 of the Consumer Protection Law clearly stipulates: "Operators and consumers should follow the principles of voluntariness, equality, fairness, honesty and credibility." Through the promulgation of the Law on the Protection of Consumers' Rights and Interests, the rights of consumers have been clarified, and the basis for protecting consumers' rights and interests has been established and strengthened, making up for the defects of the original laws and regulations in protecting consumers' rights and interests. Many existing laws and regulations in China involve the protection of consumers' rights and interests, such as the general principles of civil law, product quality law, food hygiene law and so on. The problem that consumers' rights and interests are damaged by providing and receiving services is only comprehensively and clearly stipulated in the Consumer Protection Law.

As the current Consumer Protection Law was promulgated and implemented 20 years ago, China was in the process of transforming from a planned economy to a market economy, and many issues were not thoroughly considered and the provisions were not specific enough. Some unscrupulous businessmen ignore the law, are opportunistic and lack integrity. In the face of a mixed consumption environment, consumers' own rights and interests have been violated again and again. When we are scarred in the tide of consumption, we shout for rights protection and integrity. Although our consumption environment, consumption requirements and consumption quality have been obviously improved, there is always a discordant note in our daily life-lack of honesty. There has always been a problem of honesty in our consumer market, and the environment in which consumers live is still a dangerous consumption environment.

Second, the disadvantages of China's consumer rights protection law:

(A) the scope of application of the Consumer Protection Law is not clear

In practice, people often disagree about the scope of application of the consumer protection law, mainly as follows:

First, does the Consumer Protection Law apply to the sale of houses? Some courts believe that housing, as a commodity, is a commodity buying and selling behavior. There should be no problem in applying for compensation if the operator commits fraud. Because the "commodity" stipulated in the Consumer Protection Law refers to the commodities that people need in their daily material life or cultural life and are traded in the market, including movable property and immovable property. Consumers buy commercial housing for living and consumption, and the commercial housing should be a commodity stipulated in the Consumer Protection Law, so this law should be applied to disputes arising therefrom. The court with the opposite view holds that commercial housing is a commodity and real estate, and this provision of the Consumer Protection Law is not applicable; This clause does not apply if the house has passed the acceptance and there is no quality problem; Houses do not belong to the adjustment scope of product quality law, and should be judged by urban real estate management law; Even if the commercial housing is punished by "several times compensation", it will not cause "bone injury" to the operators. This punitive liability has little influence on the market transaction order. Once the adjustment is deliberately emphasized according to the Consumer Protection Law, it will bring unimaginable interference and destruction to the market transaction order, resulting in a serious imbalance between "fairness" and "order" [see the investigation report of Jiangxi Higher People's Court in handling consumer rights disputes]

Second, does the Consumer Protection Law apply to disputes between doctors and patients? Some local laws and regulations include medical disputes in the scope of protection of the Consumer Protection Law. For example, the implementation measures of Zhejiang Province stipulate patients' right to know, privacy and civil liability for personal injury caused by medical institutions' mistakes in diagnosis and treatment, and clearly include the doctor-patient relationship in the adjustment scope of the Consumer Protection Law. Fujian's "Implementation Measures" also clearly included the disputes between doctors and patients in the field of the Consumer Protection Law, but most provinces did not make clear provisions on this issue. There are three viewpoints in the theoretical circle. One view is that the Consumer Protection Law cannot be applied to medical disputes. The reason is that China's health service is a social public welfare service with certain welfare policies implemented by the government, which determines that hospitals cannot be used as commodity operators in the general sense. Hospitals provide medical treatment, prevention, health care, rehabilitation and other services not for profit, but for social benefits. The medical behavior of hospitals is not an ordinary consumption behavior stipulated in the Consumer Protection Law, but a special consumption behavior. At the same time, patients are not consumers, and hospital medical consumption still adheres to government-guided prices and does not follow the market. Therefore, the fees paid by patients are not equal to the medical services received. Therefore, the Consumer Protection Law cannot be applied to medical disputes [Chen Shuanqing and Wang: Different Opinions on Handling Medical Disputes with the Consumer Protection Law, Journal of Management of China Medical College,No. 1999,No. 12]. The second point of view is that the services provided by hospitals are services in the Consumer Protection Law, and the drugs they sell are also commodities in the Consumer Protection Law, and the services provided by hospitals and the drugs they sell are also paid. Therefore, there is no legal basis for thinking that the Consumer Protection Law is not applicable to hospital disputes [3] Yu Yan: Several Misunderstandings in the Implementation of the Consumer Protection Law, contained in. The third view is compromise, that is, generally speaking, the law on the protection of consumers' rights and interests should be applied to the doctor-patient relationship, but at present, hospitals in China have not been fully marketized, and medical services are subject to government-guided prices rather than market-regulated prices, so other special laws or related legislation should also be applied [4] Wang Liming: The Concept of Consumers and the Adjustment Scope of the Law on the Protection of Consumers, contained in Politics and Law, No.2, 2002. ]4。

Third, does the consumer protection law apply to service disputes in monopoly industries? In recent years, the fields involved in consumer rights disputes have been expanding, and have extended to monopoly industries such as telecommunications, finance, medical care, railways, postal services, electricity, heating, tap water and gas supply. In Jinan, a Shen Hongjia insisted on arguing with the unreasonable charges in the telecommunications industry; In Baotou, a Deng refused to buy an account of the telecommunications department, and finally got back justice for himself in court. However, because these industries have their own industry regulations and practices for a long time, they often disagree that the Consumer Protection Law can be applied. For example, a passenger travels on a railway passenger train because the train brakes on the track and his leg is broken. When claiming damages through litigation, the court told the victim that he could only get compensation according to the supporting provisions of the Railway Law. Another example is a 18-year-old rural girl, who tried to get into college, but lost the opportunity to go to college because the university admission notice was not delivered. The post office refused to pay compensation on the grounds that the delivery of ordinary letters stipulated in the Postal Law was delayed and the postal enterprises were irresponsible.

The above judgment on the scope of application of the Consumer Protection Law is also biased. The main reasons are as follows: First, the provisions on the scope of application of the Consumer Protection Law are not fully understood. The law on the protection of consumers' rights and interests has clear and specific provisions on its scope of application: "consumers' rights and interests are protected by this law when they buy or use goods or receive services for their daily consumption needs;" "Matters not covered by this Law shall be protected by other relevant laws and regulations." Article 3 of the Law on the Protection of Consumers' Rights and Interests stipulates: "Operators shall abide by this Law when providing commodities or services they produce or sell to consumers; Where there are no provisions in this law, the provisions of other relevant laws and regulations shall prevail. " Second, it failed to correctly understand the provisions of the scope of application of the Consumer Protection Law. Many people take it for granted that the Consumer Protection Law only applies when there is a dispute over the purchase and use of goods, but not when there is a dispute over the service relationship. This is obviously a misunderstanding of the provisions of Articles 2 and 3 of the Consumer Protection Law. Of course, it does not rule out that the monopoly service industry is related to stereotypes that are inconsistent with the value orientation of the market economy, such as being the boss, fiddling with privileges, improper role conversion, and relying on the sword of industry norms. Third, the real intention of opposing the application of the Consumer Protection Law may be to reduce or exempt one's own civil liability, and the degree of interest is also an important factor in choosing the applicable law. Fourth, more profoundly and mainly, the relevant parties failed to correctly understand and grasp the effectiveness of the consumer protection law. Whether the consumer protection law is applicable or not naturally involves the effectiveness of the consumer protection law and the relationship between the consumer protection law and the regulations of monopoly industries. As we all know, the Law on the Protection of Consumers' Rights and Interests was passed at the fourth meeting of the Eighth NPC Standing Committee on June 30, 2000. Since this law was enacted in the National People's Congress Standing Committee (NPCSC), its effectiveness is of course higher than the departmental industry regulations formulated by various ministries and commissions in the State Council. Comparatively speaking, the consumer rights protection law belongs to the superior law, while the departmental industry regulations belong to the subordinate law. Of course, the effectiveness of the superior law is higher than that of the subordinate law, and the application of the superior law is of course prior to the subordinate law, and the subordinate law shall not conflict with the superior law. In case of conflict, the conflict part is invalid. This is the requirement of general jurisprudence, and it is also an important basis to confirm whether the consumer protection law is applicable, otherwise the legal norms will be in a state of chaos and disorder.

(2) The scope of protection of consumers' rights in consumption activities is too narrow.

The current Consumer Protection Law gives consumers nine rights in the form of law, namely, the right to safety, the right to know, the right to choose independently, the right to fair trade, the right to claim compensation, the right to association, the right to acquire knowledge, the right to be respected and the right to supervise, so that consumers can rely on the power of law to safeguard their own rights and interests when their rights and interests are damaged. However, with the development of market economy and the change of marketing methods, especially the emergence of network economy, knowledge economy and technical economy, and the continuous expansion of the scope of trading subjects in e-commerce and virtual business markets, the protection of consumers' rights and interests is becoming more and more complex and diversified, and only nine rights are not enough to protect consumers.

(3) To protect consumers' rights and interests, the subjects of administrative law enforcement are diversified, and the administrative protection system is unbalanced.

With the expansion of consumer complaints, consumer disputes are far from being solved by the functional scope of the industrial and commercial departments in the past. In addition to the industrial and commercial departments, it also involves many departments such as price, quality inspection, food and drug supervision, tourism, health and real estate. The administrative protection system embodied in the current Law on the Protection of Consumers' Rights and Interests mainly involves Article 32: "The administrative departments for industry and commerce of people's governments at all levels and other relevant departments shall, within the scope of their respective duties and in accordance with the provisions of laws and regulations, take measures to protect the legitimate rights and interests of consumers"; Article 33: "The relevant administrative departments shall, within the scope of their respective duties, conduct spot checks on the goods and services provided by business operators regularly or irregularly, and announce the results of spot checks to the public in a timely manner"; Article 39: "Provisions on consumers and business operators who have disputes over consumers' rights and interests may complain to the relevant administrative departments"; Article 56: "Where laws and regulations stipulate the organs and methods of punishment for acts of business operators infringing on consumers' rights and interests, such provisions shall prevail;" If it is not specified, the administrative department for industry and commerce or other relevant administrative departments shall order it to make corrections. "These regulations clearly stipulate the administrative functions in formulating measures to protect consumers' rights and interests, mediating and resolving consumer disputes, and investigating cases that infringe on consumers' rights and interests. They reflect the administrative protection framework under the leadership of the government, with one department as the mainstay and multiple departments performing their duties and cooperating with each other. However, there are many contradictions in the actual operation: First, when formulating consumer protection measures, it is difficult to distinguish priorities in some aspects because of the unclear division of labor among various departments. If a department formulates laws and regulations to protect consumers' rights and interests, it may be detained because it involves the authority of other departments, resulting in a serious lag in consumer protection measures; Second, in accepting consumer complaints, due to the unclear division of labor among various departments, the scope of acceptance by various departments is not clear. However, under the trend of emphasizing administration according to law, all departments have to be cautious and kick the ball. Third, in accepting complaints, the responsibility of accepting complaints and the responsibility of punishing violations of consumers' rights and interests often do not belong to the same department, which also weakens the efforts to crack down on illegal acts and protect consumers' rights and interests. On the other hand, administrative law enforcement measures are the guarantee for administrative organs to enforce the law in place, and the law should give administrative law enforcement organs administrative law enforcement means that are suitable for their work needs. However, the current Consumer Protection Law lacks clear provisions on law enforcement measures.

(d) Although consumers have many ways to protect their rights, it is difficult to achieve practical results.

Judicial litigation is the most important guarantee channel for Chinese consumers to protect their rights and interests according to law, but at present, China's legal litigation system is still relatively backward and traditional, lacking litigation for small consumption, especially a flexible, convenient and low-cost litigation system suitable for consumer disputes. Although the judicial institutions and examination and approval authorities in some areas have started relevant exploration, they are still in the theoretical stage, and it will take some time to enter the judicial process and put it into practice [5] Li Junjie's "Analysis of the Status Quo and Deficiencies of Laws Related to Consumer Rights Protection in China" 2065438+. Article 55 of the Consumer Protection Law clearly stipulates the punitive damages system. "If an operator commits fraud in providing goods or services, it shall increase the compensation for the losses it has suffered according to the requirements of consumers, and the amount of compensation shall be three times the price of the goods purchased by consumers or the cost of receiving services; If the increased amount of compensation is less than that of 500 yuan, it is 500 yuan. " Although this law encourages infringed consumers to actively exercise their right to appeal in order to realize their legitimate rights and interests, it also has defects. Although litigation has the advantages of finality, compulsion and relative integrity of rights realization, consumers have to give up their claims because of its complicated litigation procedures and high litigation costs.

Even if consumers claim their rights successfully, the current Law on the Protection of Consumers' Rights and Interests lacks clear provisions on law enforcement measures, making it difficult to implement civil liability. This issue involves the core issue of safeguarding consumers' rights and interests. Once consumers' rights and interests are damaged, whether operators can perform civil liabilities according to consumers' requirements has become the most concerned issue for consumers. However, at present, even in the case of clear legal obligations, clear responsibilities, clear compensation methods and even specific compensation amount, it is common for operators to deliberately delay or unreasonably refuse consumer demands for various reasons or excuses, which makes it difficult to implement the compensation liability stipulated in the Consumer Protection Law. In this case, although Articles 48 and 56 of the Consumer Protection Law stipulate that the operator shall bear corresponding civil and administrative responsibilities, there is no specific penalty execution standard for "intentional delay" and "unreasonable refusal", which makes it difficult for the administrative organ to operate, and it is not convenient for consumers to pursue the legal responsibility of the operator, which also greatly weakens the role of the Consumer Protection Law.

(5) Disputes involving public interests make it difficult for consumers to safeguard their rights.

The applicable subject of the consumer rights protection law is consumers. As long as the legitimate rights and interests of consumers are infringed, they can sue for compensation, but in practice it conflicts with other laws. On April 1 1, 2004, the gravity ditch of Lanzhou Veolia Water Group was polluted by the leakage of petrochemical pipeline, which led to the benzene content in tap water exceeding the standard by 20 times. Five Lanzhou citizens sued Veolia Waterworks, which was rejected because of the provisions of Article 55 of the Civil Procedure Law. This article stipulates: "For acts that pollute the environment, infringe upon the legitimate rights and interests of many consumers and harm the public interests, the organs and relevant organizations prescribed by law may bring a lawsuit to the people's court." . Article 2 of the Law on the Protection of Consumers' Rights and Interests stipulates that the rights and interests of consumers who purchase or use commodities or receive services for their daily consumption are protected by this Law. Tap water is also purchased by consumers for daily use. Why can't consumers protect their legitimate rights and interests? Article 37 of the Law on the Protection of Consumers' Rights and Interests stipulates: "Consumers' associations shall perform the following public welfare duties: support injured consumers to file lawsuits against acts that harm consumers' legitimate rights and interests or file lawsuits in accordance with this Law." In this case, how can consumers protect their rights and interests if consumers' associations that are qualified to file lawsuits do not act?

(6) The cost of safeguarding rights is too high.

1. The efficiency of rights protection agencies or departments is not high, and the functions of rights protection agencies sometimes overlap or conflict, leading to mutual shirking of responsibilities;

2. The cost of safeguarding rights is high, which includes both the detection and appraisal costs of the parties in the early stage and the litigation rights protection costs in the later stage;

3. The misconduct of defenders increases the cost of rights protection;

4. The enforcement of rights protection is low. Even if the rights protection can be legally confirmed, it is often impossible or difficult to implement due to ineffective law enforcement agencies or other objective factors, which undoubtedly increases the risk cost of rights protection to a great extent;

5. The procedure of rights protection is complicated, and the time and opportunity costs are high. After legal proceedings are initiated, rights protection has to go through one or more of arbitration procedures, administrative procedures and litigation procedures, all of which have strict time limits. These time constraints undoubtedly increase the time and opportunity cost of rights protection.

In real life, the high cost of safeguarding rights has dampened the enthusiasm of defenders and those who need it, resulting in defenders unwilling or afraid to defend their rights, making the protection of rights and interests in modern law a dead letter. Some defenders even avoid legal channels and take self-help or even illegal ways to solve them. The order established by modern rule of law will be easily destroyed and the social situation of stability and unity will be difficult to maintain. Without solving the problem of high cost of consumer rights protection, it is difficult to fundamentally purify the market, because for the common interests of selling products, it is easy for merchants and manufacturers to reach an alliance and deceive consumers through various means such as price, packaging and return. After consumers find the problem, because of the high cost of rights protection, they have to swallow their words, and the problem products and manufacturers are becoming more and more rampant.

Third, the perfection of consumer protection law.

(A) to expand the scope of consumer rights through legislation

Due to the development of science and technology and the improvement of people's living standards, the field of consumption involves all aspects of production, and it is no longer just a narrow scope covered by the consumer protection law. Nowadays, the field of consumption has been widely involved in spiritual consumption such as medical care, network, communication and media. Therefore, the consumer protection law should also be adjusted in this respect to effectively safeguard the legitimate rights and interests of consumers in these emerging consumer sectors.

(B) the establishment of a unified arbitration department

In view of the lack of clear arbitration and management departments for consumer disputes in China's current laws, China should speed up the establishment of a consumer rights arbitration mechanism to solve consumer rights disputes. Specifically, it includes: ① establishing a consumer dispute arbitration management organization and related supporting arbitration system to simplify the procedures for consumers to arbitrate consumer disputes and reduce arbitration costs and energy consumption; (two) the establishment of the arbitrator selection system, detailing the quality requirements, conditions and relevant qualifications of arbitrators, which shall be implemented by the arbitration management institution. In practice, arbitrators can be selected from consumers' associations, lawyers' associations, judicial departments and experts and scholars. (3) Establish a set of composition mechanism, operation mechanism and agency litigation procedure of consumer rights arbitration, including the organization system, operation system and operation procedure of consumer arbitration committee, which is specially used for efficient and simple arbitration of consumer rights disputes, especially small disputes; (4) The arbitration administration can cooperate with the current organizational setup of the consumer association, and regard the consumer association as a subsidiary of the arbitration administration. The arbitration administration department will carry out special supervision and system to improve the representativeness and fairness of the consumer association in the process of handling consumer disputes [6 policy columns "Defect Analysis and Legislative Improvement of China's Consumer Protection Law": the window of law was added: 2009-1-/.

(C) reduce the cost of consumer rights protection

We should integrate the relevant provisions of the civil procedure law on summary procedure and special procedure, and adopt more favorable, simpler and faster ways to solve consumer disputes, such as circuit court, sole trial, final trial of first instance, sharing the burden of proof by operators, and short-term conclusion. , so as to reduce the litigation burden of consumers, and at the same time give consumers' associations the status of litigants, so that they can actively participate in litigation and seek benefits for consumers.

1. The inversion of civil burden of proof in China mainly stipulates that in civil substantive law and judicial interpretation, the victim's burden of proof in litigation is directly exempted through the provision of no-fault liability in civil substantive law, or the plaintiff is not required to bear the burden of proof by presumption that the infringer is at fault of the defendant, thus realizing the purpose of inversion of burden of proof. For example, the Supreme People's Court's "Several Provisions on Evidence in Civil Proceedings" stipulates in Article 2 that "the parties have the responsibility to provide evidence to prove the facts they claim or refute the facts claimed by the other party. If there is no evidence or the evidence is insufficient to prove the facts of the parties, the parties with the burden of proof shall bear the adverse consequences. " However, in practice, due to the lack of professional knowledge, consumers are obviously in a relatively weak position in the ability to provide evidence. 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 "common dangers". 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. It is difficult to prove that consumers are greatly hindered in safeguarding their legitimate rights and interests. According to Article 23 of the Law on the Protection of Consumers' Rights and Interests, "if consumers find that durable goods such as motor vehicles, computers, televisions, refrigerators, air conditioners, washing machines or services provided by operators are defective, and disputes arise, the operators shall bear the burden of proof for the defects". Except for a few special industries, most of them need consumers to provide evidence. Article 23 only stipulates durable goods or decoration services, so what about other disputes? For example, in food quality disputes, consumers not only spend a lot of time and cost, but also pay expensive appraisal fees first, which makes consumers who are already in a weak position have nowhere to start. What's more, the personal injury caused by food quality problems often has the problems of time span and quantity accumulation, which is extremely concealed and cannot be known without relevant inspection and appraisal. Therefore, it is an important measure to introduce the inversion of burden of proof in all consumer disputes, which will also realize the principle of fair protection of the legitimate rights and interests of the parties in substantive law.

2. Let the "Quality Inspection Department" belong to public welfare.

Difficulty in identification can be said to be an important factor that restricts the cost of rights protection, especially after-the-fact identification of huge commodities such as automobiles and houses, or after-the-fact identification of some high-tech commodities such as mobile phones and computers, most of which are identified by manufacturers or businesses themselves. In this way, operators who are both coaches and referees are bound to be suspected of "black-box operation", which directly increases the cost of consumer rights protection. For example, if consumers want to return defective automobile products, they will face a series of late links such as license plate number, frame number and purchase tax. In addition, there are no formal laws and regulations on the recall of defective cars in China, so the success rate of consumers' return is almost zero. In view of this, if our quality inspection department is public welfare and supported by state funds, it can not only reduce the cost of testing and appraisal in terms of rights protection, but also make the results of testing and appraisal more scientific, fair and convincing. Let consumers solve product quality problems in time when purchasing products, and no longer have to stop the sonorous pace of rights protection because of expensive testing and appraisal fees and long testing and appraisal cycles.

(4) Establish and improve the supervision system and strengthen law enforcement.

In order to protect the legitimate rights and interests of consumers from infringement, first, efforts should be made to strengthen leadership and establish a regulatory guarantee mechanism. It is necessary to further improve the working mechanism, enrich the professional and technical team, strengthen the funding guarantee, and ensure the effectiveness of market supervision. The second is to establish an efficient operation mechanism with efficiency construction as the main line. It is necessary to focus on the construction of industry and commerce 123 15 and establish an efficient operation mechanism of industry and commerce 123 15; It is necessary to focus on food addition and product quality and establish a working mechanism for investigating cases. The third is to establish a perfect supervision mechanism with information construction as a breakthrough. It is necessary to innovate supervision methods, establish a supervision platform and improve supervision efficiency. The fourth is to establish a long-term management mechanism based on standardization construction. It is necessary to further establish and improve the access supervision mechanism, consumer appeal prevention and resolution mechanism, commodity quality supervision mechanism in circulation field, social linkage mechanism of consumer rights protection and rapid response mechanism of consumer rights protection, and strive to improve the ability and level of consumer rights protection work.

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. At present, a small number of intermediaries (such as appraisal units) and law enforcement personnel have poor self-discipline, and what's more, it is extremely difficult for consumers to complain and collect evidence. Therefore, on the one hand, it is necessary to strengthen the professional ethics education of intermediary organizations and law enforcement personnel; On the other hand, it is necessary to gradually implement the system of joint and several liability for the consequences of intermediary organizations and law enforcement personnel, severely crack down on those who neglect their duties and issue false certificates, enhance the risk cost of their practice and urge them to strictly enforce the law.

(5) Pay close attention to developing the consumer assistance system.

Due to the weakness of consumers, scattered consumers are faced with large enterprises with strong economic strength, and litigation costs affect consumers' litigation ability. After the implementation of the consumer assistance system, the administrative organ protecting consumers' rights and interests can bring a lawsuit to the court, demanding civil punishment for the offenders and compensating the victims for their losses. They can also support consumers to sue and investigate the civil liability of infringers. The court can also implement a system of reducing or exempting legal fees for special consumers, which embodies the principle of judicial procedures to protect the weak.