Reserach On The Application Of Punitive Damages In Knowing And Buying Fake

Since China introduced the punitive compensation system in 1993,the phenomenon of knowing and buying fake has emerged endlessly.According to the statistics from the China Judgments Online,China’s judicial authorities has handled6370 disputes of buying fake from 2017 to 2022,with an average annual handling of over 1000 cases.In recent years,The Legal Daily and The Daily Worker had published some critical articles to discuss whether the people who knowing and buying fake can appeal for punitive damages;In 2022,Shao Baichun’s case had triggered a heated debate about this question again,but the community failed to form a unified view.At present,Some laws of china are related to consumers’ right to claim punitive damages,including The Law of the People’s Republic of China on the Protection of Consumer Rights and Interests(hereinafter referred to as the "Law on the Protection of Consumer Rights and Interests"),the Food Safety Law of the People’s Republic of China(hereinafter referred to as the "Food Safety Law"),etc.However,there is no clear provision whether the fake buyers can claim for punitive damages.Whats worse,the identification standards of consumers,the components of operators’ fraudulent behavior,the connotation of consumer losses are too principle and fuzzy,which caused the problem of different judgments in the same case is prominent.In the research process of this paper,the author searched 5679 civil judgments from January 1,2017 to May 1,2022 on the website of China Judgment Documents with the key word of "knowing and buying fake and punitive damages",among which 2012 were documents of second instance,the rate of second instance reached 35.4%.Among the 3610 first-instance judgments,the author randomly sampled 100 judgments,found that 37 of them supported the plaintiff’s request for punitive damages,accounting for 37%;36judgments were not supported by judgment,accounting for 36 percent;and 27 were partially in favor of the plaintiffs’ request for punitive damages;almost evenly split between the two very different verdicts.This is obviously detrimental to the judicial credibility and consumer rights and interests;what-worse,hindering the high quality development of market economy.In this context,this paper carries out a systematic study on the application of punitive damages in knowing and buying fake,comprehensively combs the judicial status quo,summarizes and in-depth analyzes the main judicial disputes in detail.From the theoretical level,it proves the legitimacy of punitive damages applied to "knowing and buying fake".From the institutional level,it discusses how to overcome the dilemma of the application of punitive damages in knowing fake and buying fake,and is committed to putting forward the improvement suggestions of the application of punitive damages in knowing and buying fake,trying to make some contribution to the market environment and achieving high-quality development of the market economy.This paper is divided into four parts,except the introduction and conclusion,these four parts main content are as follows:Chapter two,the judicial practice of knowing and buying fake.Firstly,this chapter combs the judicial overview in the past several years,by searching the judgment documents of buying fake on purpose from 2017 to 2022,and studying from four aspects: the number of cases,geographical distribution,second instance rate and judicial results.It is found that those cases have four characteristics: large number of judicial cases,in-homogeneous distribution,different judgments in the same case.Further,based on a large number of empirical studies,this chapter has sorted out and extracted the main judicial controversial points that have led to different judgments in the same case,and presented them intuitively with three typical cases,they are: whether the person who knowingly buys fake goods has consumer identity,how to identify the fraudulent behavior of operators,and how to understand the connotation of consumer losses.Chapter three,the jurisprudence analysis of the application of punitive damages in knowing and buying fake.Should the punitive damages system be applied to knowing and buying fake? This chapter aims to provide a theoretical answer.Firstly,this chapter defines the concept of buying fake on purpose,and explains the identification criteria for buying fake on purpose;Secondly,this chapter discusses the functions of punitive damages,and deduces that punitive damages have the functions of compensation and encouragement for consumers and punishment and containment for operators;Finally,this chapter discusses the value and significance of punitive damages applicable to knowing and buying fake.Supporting those who claims punitive damages from producers and operators based on the counterfeit and shoddy products they have purchased,which is in the interests of an unspecified majority of consumers,helpful to purify the market environment,and conducive to strengthening market supervision,which is an important supplement to the public supervision.It cannot be categorically denied because of social disputes.The application of the punitive damages system in knowing and buying fake has theoretical legitimacy and necessity.Chapter four,the evaluation and analysis of the main controversy focus on punitive damages to buying fake on purpose.This chapter aims to answer that whether and how punitive damages applied in buying fake on purpose from the institutional level,and to respond to the focus of judicial disputes presented above.Firstly,this chapter makes a normative analysis of the legal provisions involved in the main controversy focus,and clarifies the problems in the legal provisions;Secondly,this chapter combs the different views of academic and practical circles successively;Finally,the author puts forward personal position and opinions,and make a brief comment on the typical cases stated in the third chapter.Chapter five,the suggestions about the application of punitive damages in knowing and buying fake.This chapter puts forward some suggestions from the legal and normative level,which is the key content of this paper.This part including three aspects:First,refining the consumer identity of punitive damages for buying fake,adopting the objective standards of behavior to judge whether the buyers are purchasing or the needs of life consumption,which means if the buyers purchase goods(or services),and do not use them for resale business,they can be identified as a legal consumer;Second,clearing the constituent elements of fraudulent behavior in the punitive compensation for knowing and buying fake.The constitution of fraudulent behavior of operators does not need to consider whether the consumer side of the transaction falls into the wrong understanding due to fraudulent behavior.Furthermore,it should distinguish the subjective psychology of operators and apply different penalty compensation multiples according to intentional or gross negligence.Third,clarifying the specific connotation of loss,and proposing that the punitive damages multiple enjoyed by those fake buyers according to the loss of price should be reduced.At the same time,it is suggested to further distinguish between the field of food and medicine and the field of general consumption,so as to maximize the benefit and avoid the harm of knowing and buying fake,to prevent abuse of the system.