Draft amendment
The fifth plenary session of the Standing Committee of the 12th National People's Congress held its first plenary meeting on the morning of the 21st. It continued to review the draft amendments to the Consumer Protection Law and the revised draft of the Environmental Protection Law.
Online shopping, some goods may not be returned for no reason within 7 days, the freight for returning goods should also be borne by consumers. This was stipulated in the third draft of the draft amendment to the Consumer Rights Protection Law, which was submitted to the Fifth Session of the Standing Committee of the 12th National People's Congress yesterday. Standardizing online shopping is an important revision of the third-instance draft, mainly related to the limitation of no-reas return on the 7th, and under what circumstances the online shopping platform needs to bear the responsibility for the first payment. This edition is written/New Beijing News reporter Song Zhijing (except signature)
â– Focus
1
E-book or can not be returned unconditionally
The second draft of the draft amendment draft stipulates that the operator sells the goods by means of the Internet, etc., and the consumer has the right to return the goods within 7 days from the date of receipt of the goods, and there is no need to explain the reasons. However, consumer-customized goods, fresh and perishable goods, consumer audio-visual products, computer software, newspapers, periodicals and other goods are not included. This is called the consumer's "repentance."
However, at the time of the last deliberation, some members of the Standing Committee and the NPC deputies attending the meeting proposed that it is good to establish an unreasonable return system for online sales of goods, but it should also prevent abuse of rights and further clarify the types of goods that are not applicable for return. At the same time, who will bear the freight for the return.
According to Su Zelin, deputy director of the NPC Law Committee, the draft added that the digital products downloaded online are not applicable for no reason to return, and at the same time increase the regulations. The freight for returning goods is borne by the consumers; however, the operators and consumers have agreed otherwise. Convention. This means that e-books and other online purchases of downloaded products may not be returned within 7 days without reason.
â– Interpretation
Why is there no reason to return the freight?
Since this is not a problem with the quality of the goods, the reason for the return is not in the merchant, so the return shipping cost is borne by the consumer.
Liu Junhai, director of the Institute of Commercial Law of Renmin University of China and vice president of the China Consumers Association, said that there is no reason to return, referring to the consumer’s use of the “repentance right†that he has given, and he does not like the goods he bought, and he is calm in 7 days. Returns made during the period. Since this is not a problem with the quality of the goods, the reason for the return is not in the merchant, so the return shipping cost is borne by the consumer.
"But the public must not misunderstand this." Liu Junhai said that if there are quality problems such as defective goods and defects, it is due to return, it is necessary to return the goods according to the three guarantees, and the return cost will be at this time. It is assumed by the operator.
Zhang Yanfang, director of the China Youth Political Institute's Consumer Rights Protection Law Research Center, also said that this provision is considered from the protection of the common interests of both parties. The consumer has a cooling-off period, and the unsatisfactory goods can be retired, but if The new tariffs are borne by the operators, which undoubtedly increases the burden on the operators.
2
The network trading platform is overdue and must pay first
The draft review of the draft stipulates that the network trading platform provider applies the same conditions as the trade fair and the rental counter. This means that if there is a problem with the goods on the Internet, consumers can directly negotiate with the online trading platform, and the network platform needs Pay first.
According to Su Zelin, in the second instance, some members of the Standing Committee proposed that online transactions are different from physical transactions and have the characteristics of being virtual. The number of e-commerce vendors selling goods on the online trading platform is huge, and the two are treated differently. It is not necessarily beneficial to consumers.
The draft three review drafts alleviate the responsibility of the online trading platform, stipulating that consumers who purchase goods or receive services through the online trading platform, the legitimate rights and interests are damaged, and the seller or the service provider is required to pay compensation. If the "network trading platform provider cannot provide the real name, address and effective contact information of the seller or service provider", the consumer can claim compensation from the online trading platform provider.
The draft also stipulates that the network trading platform provider has the right to recover from the seller or the service provider.
â– Interpretation
Providing a seller information online shopping platform can be exempted?
Experts recommend a unified pre-payment system for third-party online shopping trading platforms
Zhang Yanfang said that the online shopping platform provides the seller's information to the consumer, so that the consumer can directly find the seller to claim, it is also feasible.
Liu Junhai pointed out that the advance payment of the provider of the online trading platform is a condition that “the real name, address and effective contact information of the seller or the service provider cannot be providedâ€. Compared with the previous draft, it is undoubtedly somewhat weakened. The responsibility of a third-party online shopping trading platform such as Taobao. The online shopping platform is responsible for the soil. It cannot be excused from providing sellers with information about the seller. More self-discipline trading rules should be established.
"You can't sacrifice the rights of consumers to change the so-called big development of callers." He believes that if the responsibility of third-party online shopping platforms is weakened, consumers lose confidence and are not conducive to the development of e-commerce. The advance payment system of the trading platform, or adding provisions in the terms, the online shopping trading platform to supervise the sellers are at fault, and should also pay for the consumer first, so that the online shopping platform truly shoulders the supervisory responsibility for the seller.
3
Clearly punitive damages can be doubled
According to the provisions of the draft second review, if the operator knows that the goods or services are defective and still provides the consumers with fraudulent acts, causing death or serious damage to the consumers or other victims, in addition to investigating the criminal responsibility, the victims have the right. Claim civil damages less than three times the loss suffered. Among them, there is no clear "punitive damages."
Su Zelin said that some members suggested that "civil compensation" be amended to "punitive damages." The Law Commission believes that the "loss" stipulated in the second review draft includes not only personal and property losses, but also compensation for mental damage. On the basis of these provisions, punitive damages of less than twice the amount can be clarified.
Finally, the draft three-review draft stipulates that the victim has the right to require the operator to compensate for the loss in accordance with the provisions of this Law, and also to claim punitive damages less than twice the loss suffered.
â– Interpretation
Is fraud enough to cause serious damages enough?
Worried that the impact on the offenders is not enough, the proposal is still implemented "there is no guarantee under the top of the cap"
Liu Junhai said that compared with the current elimination method, the third draft of the draft amendment is biased towards consumers, which reduces the phenomenon of consumers killing a cow by “recovering a chicken†and embodies the protection of consumers.
However, for the fraud that caused serious damage to consumers or serious damage to health, the third trial proposed that the victim has the right to demand “punitive damages less than twice the loss sufferedâ€. Liu Junhai believes that this is not a shock to the illegal business. It is very large and the strength is slightly smaller. It is still recommended to implement the “guarantee under the capâ€. The damages should involve actual losses such as personal injury losses, property losses and compensation for mental damage.
â– Follow-up
Consumers Association: Changing "social groups" into "social organizations"
The current Consumer Protection Law stipulates that consumer associations and other consumer organizations are social groups responsible for social supervision of goods and services and protecting the legitimate rights and interests of consumers.
The State Administration for Industry and Commerce and the China Consumers Association have proposed that the Consumers Association is set up by the government. There are no members, and the performance of their duties is public welfare. It is different from the social groups composed of members as stipulated in the Regulations on the Registration of Social Organizations. It is recommended to re-qualify.
The draft three-review draft categorizes the consumer association as a “social organization†and stipulates that it should listen to consumer opinions and suggestions and accept social supervision.
The law case is carried out "pre-release assessment"
According to Su Zelin, on October 9, the Legal Work Committee of the Standing Committee of the National People's Congress held a “pre-release assessment meeting†to evaluate the feasibility of the draft amendments and major revisions, the timing of the introduction, and the social effects after implementation. Participants included representatives of NPC deputies, consumers, operators and others.
The overall evaluation of the assessment is that the draft further improves the protection of consumer rights and interests for new situations and new problems, regulates new consumption methods, and is conducive to enhancing consumer confidence and promoting legitimate business and integrity management. The content is clear, specific, targeted and operability, and it is necessary and timely to introduce it now.
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