Judicial Determination Of "fraud" In The Consumer Protection La

China’s Law on the Protection of Consumer Rights and Interests(2013)introduced the punitive compensation system,which to some extent cracked down on the illegal activities of operators’ fraudulent operation and protected the legitimate rights and interests of consumers.However,the legal concept is not clear,and lack of corresponding judicial interpretation,resulting in difficulties in judicial application.The identification of fraud has always been the object of heated discussion in the academic and judicial practice.Civil law scholars and economic law scholars hold different views on it.Civil law scholars believe that the interpretation of fraud in the Opinions of the Court on Some Issues concerning the Implementation of the General Principles of the Civil Law of the People’s Republic of China(Trial)should be the standard;Economic law scholars believe that fraud should be identified from the perspective of economic law.However,with the promulgation of the Civil Code,the Opinions on People’s Communication is no longer valid,and no clear provisions have been made in the field of economic law.Judicial interpretation is still absent,and the identification of consumer fraud needs to be solved urgently.In judicial practice,punitive damages have become the main point of dispute between consumers and operators,and even the root of it.The determination of punitive damages is the direct embodiment of fraud identification in the elimination law,and it is an unavoidable part,but its provisions are also not clear.In addition to the introduction,this paper is divided into four parts,including the following contents:Chapter one is the identification of judicial identification of fraud.By December 1,2021,the author summarized the differences in the determination of consumer fraud in judicial practice through sorting and analyzing 270 judicial decisions,which are embodied in three aspects: the constituent elements of fraud,the subjective burden of proof of operators and punitive damages.The second chapter analyzes the problems of consumer fraud identification,which is divided into three parts: legal analysis,legislative analysis and practical analysis.In the legal analysis part,from the Angle of civil law and economic law,the protection of rights and interests and the weak position of consumers are discussed.In the legislative analysis part,expounds the fuzziness of fraud and punitive damages.In the part of practice analysis,it analyzes the considerations of judges when exercising their discretion.The author thinks that the identification of fraud should start from the legislative purpose of consumer law and the perspective of economic law.The third chapter is the reference of overseas experience.In this part,the author discusses the consumer protection in the United States and Germany.American consumer protection started early,the system is relatively complete,and applies the punitive compensation system;Germany and China are the same civil law countries,but consumers into the protection of civil law,refused to apply punitive compensation system.The fourth chapter includes the summary of the guiding ideology of "Consumer Law" and puts forward suggestions on the judicial determination of consumer fraud,including three aspects: constitutive elements,the subjective burden of proof of operators and punitive damages.In terms of constitutive elements,the author holds the view of two elements,and at the same time,the gross negligence should be included in the subjective elements.In the subjective aspect of the operator’s burden of proof,the author thinks that the inversion of the burden of proof should be adopted;In the aspect of punitive damages,the author thinks that the punitive damages should be determined according to the standard of compensation in the contract law.