Study On The Recognition Of Operator Fraud In Article 55 Of The Consumer Protection Law

Article 55 of the law on the protection of consumer rights and interests imposes punitive damages on operators for fraud,which plays an important role in safeguarding consumer rights and interests,cleaning up the market transaction environment and promoting the harmonious development of economy and society.At present,the traditional civil fraud theory is mostly used as the standard for the determination of operator fraud,but in recent years,different opinions have appeared in the judicial judgment,and the common point is that the standard adopted is more relaxed than the traditional standard for the determination of operator fraud.In the past five years,relevant cases in ZheJiang province show that operator fraud is a special civil fraud,which is quite different from traditional civil fraud in t Subject of legal relation,legal liability and reusable degree of behavior.Under this background,In this context is still adopts the traditional civil fraud constitute standard to judge whether fraud is inappropriate,an operator is part of the behavior does not conform to the standard of traditional civil fraud,but it is can be condemned under the consumer protection laws.From the historical evolution and system value of the traditional civil fraud theory and the punitive damages system,and the existing legislation system of punitive damages system in China shows that the ultimate goal of traditional theory of civil fraud is that the intention of the parties free maintenance,whereas the punitive compensation system to punish and prevent and restrain the illegal ACTS.There is a big difference in the value orientation of the legislation between the two.Applying the traditional civil fraud theory to identify the operator’s fraud will make the punitive damages system become one of the tools to maintain the autonomy of will,and it cannot give full play to the unique system function of the punitive damages system,which is contrary to the legislative intention of article 55 of the consumer rights and interests protection law.Therefore,the author starts from the punitive compensation system to reconstruct the identification requirements of the operator’s fraud.The operator subjectively has fraud intention or gross negligence,and objectively implements the fraud behavior that can affect the consumer’s decision.It is not necessary to make the specific consumer fall into the wrong understanding and make the wrong intention expression,which can constitute the operator’s fraud.