New consumer protection law interpretation: online shopping is not satisfied with the return within 7 days

Yesterday, the draft amendment to the "Consumer Protection Law" was submitted to the Standing Committee of the National People's Congress for the first time. Li Shishi, director of the Legal Work Committee of the Standing Committee of the National People's Congress, made an explanation on the draft amendment to the Consumer Protection Law.
Off-site shopping will be given a "right to regret", impulsive online shopping is not satisfied with the return within 7 days. There are problems with buying durable goods such as cars, computers, and refrigerators. The amount of punitive damages for fraudulent consumption is supposed to be tripled from the original double.
Yesterday, the "Consumer Protection Law" for the first time in nearly 20 years ushered in the overhaul for the first time. The draft amendment was first submitted for consideration at the second session of the Standing Committee of the 12th National People's Congress.
On October 31, 1993, the "Consumer Protection Law" passed and was implemented on January 1, 1994. This is the first time China has fully confirmed the rights of consumers in the form of legislation and is regarded as a consumer. The rights protection weapon and the legal umbrella.
Yesterday, Li Shishi, director of the Legal Work Committee of the Standing Committee of the National People's Congress, stated in his explanation of the draft amendment that as the economy and society continue to develop, China’s consumption patterns, consumption structure, and consumption concepts have undergone major changes, “in the field of protection of consumer rights and interests. There have been many new situations and new problems. It is necessary to revise this law in a timely manner and improve the legal system for consumer protection."
Li Shishi introduced that protecting consumer rights is the core and foundation of the Consumer Protection Law. The draft has revised the three aspects of clarifying the protection of personal information, perfecting the “Three Guarantees” provision, and increasing the penalties for fraudulent conduct.
The "Consumer" is looking forward to the first revision. It is reported that how punitive liability is stipulated, whether consumers are allowed to remorse, whether the scope of application of the "Consumer Law" is to be expanded, etc., are the focus of the controversy over the revision of law.
■ Major History of Corrections ● Formulation of Consumer Law in 1993 China established the "Consumer Protection Law." The law first established the consumer’s right to information, equal rights to trade, legal rights, etc. It was implemented in 1994. Medical disputes, housing disputes, etc. are not included in the scope of application.
● Launched in 2009 to revise the State Administration for Industry and Commerce has taken the lead in initiating the revision of the consumer rights protection law.
● The draft of the 2010 draft submitted for review will be submitted to the State Council.
● In March 2012, during the proposed amendment to the Fifth Session of the Eleventh National People's Congress, 121 representatives put forward four proposals that proposed amendments to the Consumer Rights Protection Act.
● In November 2012, it was included in the planning revision of the "Consumer Law" and included in the legislative plan for the Eleventh National People's Congress Standing Committee.
● For the first time in April 2013, the draft amendment to the “Consumer Law” was first submitted to the Standing Committee of the National People's Congress for consideration.
■ Focus Interpretation Remote Shopping Net Proposes to Add “Right of Regret”
[draft regulations] Business operators use the Internet, television, telephone, mail order, etc. to sell goods. Consumers have the right to return goods within seven days from the date of receipt of the goods, unless they are not suitable for return based on the nature of the goods. The business operator shall return the price paid by the consumer within seven days from the date of receipt of the returned goods.
[Existing consumer law] There is no relevant regulation.
[Expert interpretation] Liu Junhai, director of the Commercial Law Institute of Renmin University of China and deputy chairman of China Association of Consumer Law, who participated in the revision of Consumerism, said that online shopping and TV shopping have developed in recent years and complaints in these new shopping areas have remained high. It is not easy to identify the authenticity of goods, and often businesses will flicker consumers and let consumers impulsively sign contracts for shopping. Whether or not to give consumers certain “right to repent” is a problem that is more controversial in the revision of law. Many operators oppose it, especially the real estate developers and car dealers, who are strongly opposed, but experts and scholars generally agree that the "right of repentance" should be included in the "Consumer Law."
In this draft, "right of repentance" (also known as "cooling-off period") has been added, which is equivalent to no return. However, the comprehensive right to repent is not appropriate. In order to prevent abuse by some consumers, a seven-day deadline is set for it, and the "right of regret" applies to consumer transactions in off-site shopping such as online shopping, television, telephone, and mail-order. . However, commodities such as bulk commodities, real estate, fresh aquatic products, and food that are not suitable for returning goods do not apply to the “right to repent”.
However, Liu Junhai still believes that the application scope of “right to regret” should be expanded, such as the purchase of commercial housing, automobiles, etc. “Buying a house is too important for consumers.”
The punitive damages for consumer fraud are proposed to increase to three times [draft regulations] If the operator provides fraudulent goods or services, he shall increase the compensation for the losses as required by the consumer, and increase the amount of compensation for the purchase price or service of the consumer. Twice the cost.
[Existing Consumer Law] If a business operator commits a fraudulent act on goods or services, it shall increase the compensation for the losses suffered by the operator according to the requirements of the consumer, and increase the amount of compensation for the purchase price of the goods or the cost of the service.
[Expert interpretation] Zhong Baoxue, head of the lawyer's group, Qiu Baochang, said that the current "Consumer Law" stipulates that fraudulent activities must be doubled (that is, 1+1 compensation), that is, "false and indemnity two." This was considered a legal one at that time. The big breakthrough also led to a group of professional crackers represented by Wang Hai. However, this clause is obviously not suited to the development of society. Some commodities have very low value. Double compensation is not enough to deter lawbreakers.
This amendment will revise this punitive clause to "1+2" ​​compensation, and proposes to establish a minimum amount of compensation of 500 yuan. Consumers need to spend time and energy in safeguarding rights, which is more conducive to enhancing consumers' enthusiasm for rights protection. Increase the illegal cost of businesses. However, there are some regrets that the “not punitive damages” cap on the impact rating of the company did not enter the revised draft, but only increased the original compensation limit from double to triple capping.
Information Protection Consumer Privacy Protection [Draft Provisions] Consumers have the right to protect personal information such as name rights, portrait rights, and privacy rights when purchasing, using goods, and receiving services. Business operators who collect and use consumer personal information should expressly collect and use the information in the purpose, manner, and scope, and have the consent of the collector. The operators and their staff must keep confidential personal information collected by consumers ... and ensure information security.
[Current Consumer Law] stipulates that consumers have 9 rights, but there is no provision for the protection of personal information such as privacy rights.
[Expert interpretation] Yang Lixin, president of the Beijing Municipal Institute of Consumer Rights Protection Law, pointed out that the issue of consumer personal information protection in the past few years is particularly typical. Spam messages and spam are "illnesses." More serious is the emergence of stolen credit card and other direct Causes the loss of consumer property.
The draft incorporates the protection of consumer privacy and increases the rights of consumers’ portraits, names, privacy and other personal information to obtain legal protection. This is a major highlight.
Yang Lixin said that the current Consumer Law stipulates that consumers enjoy nine rights, but with the development of the market economy, especially the emergence of the Internet economy, nine rights are far from enough to protect consumers. What stands out is the right to privacy. The disclosure of personal information has repeatedly appeared, seriously affecting the normal life of consumers.
The amendment also stipulates that operators must not send commercial electronic information to consumers without consent, and that the problem of personal information that confuses consumers is expected to be regulated.
Public Interest Litigation Consumers Associations Can Replace Cases for Consumers [Draft Provisions] Actions that infringe the legitimate rights and interests of many consumers, the China Consumers Association, and consumer associations established in provinces, autonomous regions, and municipalities directly under the Central Government, may file lawsuits in the People's Court.
[Existing consumer law] has not given the function and rights of the association to organize public interest litigation.
[Expert interpretation] Liu Junhai, director of the Institute of Commercial Law at Renmin University of China and deputy chairman of China Consumers Association, said that there is currently a serious imbalance between the rights of consumers to safeguard their rights and the cost of rights protection. Many groups of people have to file lawsuits by individual consumers. It is difficult to verify the actual rights.
The increase in the introduction of the public interest litigation system of consumer organizations is an extension and refinement of Article 55 of the Civil Procedure Law in the field of consumer protection. The protection of consumer rights and interests not only needs to protect the vulnerable groups, but also safeguards the public interest. This enriches the rights-defending responsibilities of consumer associations and gives Consumers Associations some say. In the future, consumers will encounter group incidents such as "Sanlu milk powder" and "Sudan Red" that have suffered large damage and serious problems. Instead of filing lawsuits themselves, they will provide some infringement facts and evidence to the Consumers Association. The majority of unspecified consumers who are victims of the Association’s representative’s litigation on behalf of them are free from the rush of consumers’ rights protection. This can completely solve the cost of rights protection for consumers “in order to recover a chicken and have to kill a cow”. Exorbitant old problems.
■ Interpretation of the focus of the Consumer Law amendments “Three Guarantees” days “Three Guarantees” are no longer limited within 7 days. [Draft Provisions] If the operator provides goods or services that do not meet the quality requirements, the consumer may return the goods in accordance with national regulations and the parties’ requirements. Operators perform duties such as replacement and repair; if there are no national regulations and the parties agree, consumers may return the goods within seven days from the date of receipt of the goods. After seven days, the consumer can return the product in time if he meets the contractual conditions for rescission of the contract. Inconformity may require the operator to perform the obligation of replacement and repair.
[Existing consumer law] does not specify the number of days for the "three guarantees."
[Expert Interpretation] Qiu Baochang, head of the China Consumers Association’s lawyers group pointed out that the “Three Guarantees” provisions for returns, replacement, and repair have been strengthened in this draft. This draft stipulates that if there is no national regulation and the parties’ agreement, self-receipt Within 7 days from the date of the purchase, the consumer can still cancel the contract without meeting the quality requirements and actually expand the conditions for return. At the same time, he suggested that the draft should clearly identify other costs incurred when returning and returning it, and the operator should bear it.
Burden of proof

The operator of the purchase dispute has provided evidence [draft regulations] that the durable goods such as motor vehicles, microcomputers, television sets, refrigerators, etc., provided by the operator, or decoration and decoration services, will appear flawed within six months from the date of acceptance of the goods or services by the consumer. In the event of a dispute, the operator shall bear the relevant burden of proof.
[Existing Consumer Law] The “who advocates who can claim evidence” and consumer complaints are presented by consumers.
[Expert Interpretation] Qiu Baochang, head of the China Consumers Association’s lawyers group, pointed out that the difficulty in submitting evidence, high identification fees, and the inability to collect key evidence are a major problem faced by consumers in protecting their rights in the past. This not only raises the cost of consumer rights protection, but also It is easy to finally give up rights. The draft clarifies the operator's burden of proof and stipulates that he encounters problems in the purchase of goods such as motor vehicles and home appliances, as well as decoration and other services. The implementation of the burden of proof is reversed. After the consumer claims to make a complaint, the operator must prove that "Evidence is clear", otherwise you have to take responsibility for consumers and avoid the problems of difficult and costly consumer identification.
False advertisements and false advertisements must also bear responsibility for the [draft regulations] that advertising operators and publishers design, produce, and distribute false advertisements related to the health and life of consumers, such as food and medicine, and cause consumers to suffer damages. The publisher is jointly and severally liable with the operator who provided the goods or services.
■ Experts recommend that housing education and medical consumption should be incorporated into the “Consumer Protection” to protect Article 2 of the current “Consumer Law”. Protected consumers need to purchase, use, or receive services for their daily consumption needs. However, when the "Cultural Law" was drafted 20 years ago, health care, education, housing, etc. were still a kind of social welfare.
Now that there have been commercial housing, automobiles have become popular, medical disputes and various mental consumption have increased, and how to resolve consumer disputes in these areas, the "Cultural Extinction" does not explicitly give the answer.
In the draft submitted yesterday, this article has not been amended. However, Liu Junhai, director of the Institute of Commercial Law of the People's University of China and the vice president of the China Consumers Association, who participated in the revision, pointed out that buying commercial housing, automobiles, etc. are also considered as luxury consumption rather than the needs of life. In some local court judgments, it is not applicable. This is inappropriate. Therefore, the scope of application of the “Consumer Law” should be clearly defined and expanded, as long as it is a consumer activity that should be included, not only for survival-type consumption, but also for substance-based consumption, spiritual consumption, and development-based consumption such as buying medicine, visiting training classes, and buying commercial housing. Enjoyment-type consumption should also be included. The Consumer Law should be applied to make the consumption of cars and housing more troublesome. They can all use the "Coverage" to "solve all the problems."
Qiu Baochang, head of the China Consumers Association lawyers' group, also believes that if this amendment is not amended during the revision process, it should be clearly stated in future judicial interpretations.