The Analysis Of The Elements Of Ten Times Compensation In The Area Of Food Safety According To Clause 96 Of Food Safety Law

Food Safety Law has been reinforced for five years since it was passed. The law introduced ten times the compensation system, which is a progress in accord with development of China. The ten times compensation system combines Chinese business tradition of ten times compensation when the goods is one less than the marked quantity with the legal culture of western countries. The introduce of ten times compensation is suitable to our national conditions and the development trend of word economy and the legal regulations. However, our system of ten times compensation is different from that in common law countries. So we can not blindly copy their when discussing the regulation in common law of the constitutive requriements. That is why we should explore further the constitutive requirements of ten times compensation.In judicial practice, judicial decisions are troubled by the elements of the ten times the compensation system. To provide the impetus for the judicial practice, it must find the problem form the practice of judicial investigation. This thesis will discuss the different ideas about the elements of 10 times compensation identification through analyzing 116 cases of 10 times compensation. The identification are:first, whether buyers who know the goods them are buying is fake are consumers? Secondly, whether subjective elements contain gross negligence? Is the burden of proof of subjective fault is on consumers? Thirdly, is it necessary that the food which are out of food safety standard cause personal injury, damage to property or other damages for food producers to bear the responsibility of ten times compensation? Does the price belong to damages? Lastly, is the nature of 10 times compensation tort liability or liability of economic laws? We should pay more attention to theoretical research for direction the judicial practice. So, this thesis will confirm the elements of 10 times compensation for the judicial practice through discuss scholars’ different ideas. There are 5 parts in this thesis:The first part discusses the legislative background and the nature of the ten times the compensation system. The multiple times compensation system was first introduced to China as Article 49 the in "Consumer Protection Law" which is made in 1993 which plays an important role in the pratice. With the increasingly more serious food safety issues, twice compensation system is unable to effectively protect the interests of consumers. It is the trend to improve the compensation significantly. Combining our folk transaction tradition of ten times compensation when the goods is one less than the marked quantity with the examples of foreign advanced legislations, ten times compensation system was introduced in our "Food Safety Law" in 2009 as one of the highlight of the new law. However, China’s ten times the compensation system is different from punitive damages in common law, it has modified the punitive damage and created a new form to award consumers who can protect their own rights actively in accordance with Chinese situations, which is one kind of economic law liability.The second part analyzes who can be the subject of ten times compensation as consumers. The judicial practical and academia circle think dififerently about whether the ones who know they are buying fake goods can be the consumers. For know leave those who buy fake property law, the judiciary and the theory mainly discuss the law property of those who know they are buying fake goods from the perspectives of consumers’ behavior and their consumption purposes. From the perspective of consumption pursose, only those people who buy goods for life can be identified as consumers. In the perspective of consumers’ hehaviors, one can been called a consumer as long as he buys goods not for transaction again.Through the aforementioned analysis, I believe that consumers’ purchasing motives and purposes should not be a prerequisition of ten times compensation. One is a consumer as long as he buys a commodity.The third part focuses on the identification of "clearly know" of sellers. The judicial practical and academia circle think differently about whether gross negligence is a kind of "clearly konw" and whether the burden of proof about the "clearly know" of sellers lies on consumers. Through the analysis of the practical and theroy, I believe that gross negligence belongs to "clearly know" of sellers and the burden of proof should been reversed to the sellers.The fourth part discusses the elements of damage. Damage is a prerequisite for compensation obligation. Damage refers not only to damages to persons, but also to property loss and other damage. Money buying the goods is also part of the damage.The last part is the conclusions based on the aforementioned analysis of pratice and theories. I hope this can be beneficial for the trial of ten times compensation and the improvement of the "Food Safety Law".