The Identification Of Fraud In The Consumer Protection Law

In the current judicial practice,"Consumer Protection Law"(2013)article 55 has become a widely applicable "star clause",but also caused widespread concern in society.As for the identification of fraud,it has been the focus of heated debate in the current academic circles and judicial practice.The punitive damages caused by fraud make the identification of "fraud" become the root of the game between the operators and consumers in the trial.At present,the identification of fraud in academic circles mainly adopts the method of literal interpretation and the method of argumentation of constitutive elements.However,in the judicial practice,there is confusion about the identification of "fraud",and the differential interpretation of the status quo determines the dilemma of the application of law.It is difficult to determine whether "fraud" is established from the point of view of the literal concept,or from the measurement of whether there is fraud,subjective intention,fraudulent effect,and so on.This paper holds that the identification of fraud is not limited to the existence of the constitutive elements,but starts from the discussion of the constitutive elements and from the different aspects of the constitutive elements,in different judicial situations to demonstrate the operator's subjective state,objective behavior,legal effect of different standards for comprehensive consideration.Therefore,the identification of fraud should proceed from the legislative purposes,"Consumer Protection Law"(2013),the legislative purpose is not to protect the individual interests of operators or consumers,but to maintain a good market order of public interest.We should not only crack down on the operator's illegal fraudulent behavior,but also eliminate the consumers' malevolent behavior of abusing the right of claim,so as to create a sustainable market economy in which the individual interests are in harmony with the social public interests and even the national interests.Therefore,this article starts from the differentiation of the status quo of the identification of fraud,and analyzes the subjective state of the operator,the objective behavior of the operator and the legal effect of fraud,respectively,theidentification of the current consumer fraud to carry out a multi-perspective analysis.Starting from the subjective state of the operator,there are some differences in the determination of subjective intention in the civil law and the consumer law,but there is often a confusion in the practical application,and whether the subjective fault constitutes fraud is a controversial issue in the current academic community.In this paper,we will discuss the identification of fraud subjective intent in the elimination law,and analyze the controversial cases in recent years to provide some basis for the current controversial focus issues.As for the discussion of the determination of the operator's objective behavior,this paper starts from the facts fabricated and concealed in the operator's fraudulent behavior and the impact of the objective behavior on consumers,not only from the operator's unilateral behavior,combined with the typical cases in recent years,this paper demonstrates the objective behavior of fraud from different angles through the specific characteristics of the specific elements.As for the fictitious and concealed facts,the current scholars often analyze the misleading degree of the facts to consumers,but due to the fact that the standard of identifying the general social experience of consumers and the level of cognition are not the same,fabrication and concealment of facts do not necessarily lead to the effect of consumer fraud.Therefore,this article cut in from the fraud related facts to inform time,and according to these years of cases to exaggerated propaganda,conceal information is not necessarily a fraud to further explore,thus carries on the reasonable thorough analysis to the determination fraud operator's objective behavior.And as for the effect of the operator's objective behavior on consumers,this article starts from three aspects:Whether it affects the fundamental purpose of consumer contracting,whether it causes more adverse effects to consumers,how to eliminate the effects and the complexity of the corresponding treatment measures,consumer fraud in economic activities from the perspective of economic law.At present,scholars seldom consider the content of this aspect when judging the determination of fraud,but this article holds that this is an important criterion to judge whether the operator's objective behavior has an impact on consumers,but it is not the objective basis for the establishment of fraud.At present,the academic circles mainly focus on the composition of the loss.In this paper,we will start from the related loss and the threatthat the objective behavior may pose,it focuses not only on the actual loss and the hidden loss,but also on the impact of the threat posed by the objective behavior on the important interests of consumers.As for the complexity of the ways to eliminate the influence and the corresponding measures,it is the continuing consequence of the influence caused by the objective act,that is,the timely relief after the loss is caused,but it can still affect the influence caused by the objective act of the operator.Finally,regarding the legal effect of Consumer Fraud,the author discusses whether the Unilateral Fraudulent Act bears compensation and the determination of punitive damages,the relevance of fraud and loss and the current punitive damages system are discussed to demonstrate the legal effect of consumer fraud.Whether it is "multi-claim" or "no claim",this article believes that the establishment of punitive damages is not only concerned with the result of compensation,more attention should be paid to building a well-functioning market order.Therefore,punitive damages should not only be related to the loss suffered by consumers,but also pay attention to the operator's malicious degree and the related influence on consumers.This article will combine the case to carry on the thorough analysis,discusses the present main existence question.At the same time,it combs the opinions of different scholars in the theoretical circle,analyzes and discusses the dispute focus in the current judicial trial,and finds a reasonable way out for the judicial predicament,so as to provide guidance for the judicial trial practice,the exertion of the practical effect of protecting the rights and interests of consumers.