Research On The Dilemma And Countermeasures Of Punitive Damages Applied To The Purchase Of Counterfeit Goods

After the punitive compensation system was introduced into the consumer protection law(hereinafter referred to as the consumer protection law)promulgated in1993,the phenomenon of knowing and buying fake goods began to appear.It has been more than 20 years since Wang Hai knew and bought fake goods.During this period,the attitude of public power organs to know and buy fake has experienced several times,which is not common in the past judicial practice in our country.In2016,the regulations on the implementation of the law on the protection of consumers’ rights and interests(Draft for comments)(hereinafter referred to as the draft for comments)excluded "for profit" from the scope of "living consumption",and held that knowing and buying fake goods should not be protected,In 2017,in the reply of the general office of the Supreme People’s court to recommendation No.5990 of the fifth session of the 12 th National People’s Congress(hereinafter referred to as the reply),it was proposed that in the future,it would be considered to limit the purchase of fake food and drugs to the field of food and drug,but the two documents did not come into effect or there were supporting laws and regulations.Due to the unclear legal provisions,the attitude of knowing and buying fake has not been unified in judicial practice,and even the situation of "different judgments in the same case" often appears.In this paper,the basic concept of punitive damages is used as the starting point.Through the analysis of the current situation of legislation and justice,the existing problems are pointed out.On this basis,the relevant improvement suggestions are put forward.The first chapter is an overview of the basic theory of punitive damages.Firstly,Introducing the concept,formation reasons,development process and academic differences on the nature of the act;Secondly,it introduces the origin of punitive damages,analyzes the background of the introduction of punitive damages in the field of consumers in our country and the development situation after the introduction of this system;Finally,the necessity of applying punitive damages to the purchase of counterfeit goods is demonstrated.The second chapter is the legislative investigation on the application of punitive damages.Starting from the provisions of the consumer law,the judicial interpretation and guidance cases issued by the Supreme Court,the administrative regulations of the State Council and the reply of the general office of the Supreme Court,Investigating the current situation and attitude of legislation on the regulation of knowing and buying fake products,and points out the shortcomings of legislation on the basis of analysis.The third chapter is an empirical study on the application of punitive damages.On the basis of the analysis of 1121 judgment documents in the past year,this paper summarizes the three controversial focuses of punitive damages in court trial,which are the judgment of consumer identity,the identification of fraud and the understanding of loss.Then,the paper deals with the above three dispute focus types,and points out the problems in judicial practice through the introduction of three typical cases.The fourth chapter is the perfect suggestions of punitive damages applied to the purchase of counterfeit goods.First of all,consumer identity is the most basic condition for punitive damages,so it is necessary to confirm that those who know and buy fake goods have consumer identity,but the occupation of making profit by knowing and buying fake goods should be excluded;Secondly,in the identification of fraud,it is clear that as long as the operator has false propaganda or misleads consumers,fraud can be identified;Thirdly,whether the application of punitive damages is based on the actual loss should be analyzed according to different laws;Finally,it proposes to innovate the ways of protecting consumers’ rights and interests.The specific suggestions are that the government should establish an open system of honest operation and expand the main scope of consumer public interest litigation.