● Professional counterfeiting has already formed an industrial chain. Professional counterfeiters mainly have two routines: "eating goods" and "compensation". "Eating goods" means applying for a refund after receiving goods but not returning them; "Compensation" means asking the merchants to pay high compensation by means of reporting and prosecution.
● In the procedures of professional counterfeiters, it is an important part to complain and report to the regulatory authorities. In order to gain illegal benefits, professional counterfeiters often make malicious complaints and threats to businesses on a large scale. Most of the law enforcement resources are used to deal with the professional claim report and its subsequent information disclosure, administrative reconsideration and litigation, discipline inspection and supervision, etc., resulting in the improper occupation of law enforcement resources.
● In view of professional counterfeiting, some standards and procedures should be formed in the future, so that professional counterfeiters can truly achieve professionalism, give them certain normative guidance, and make their counterfeiting more professional and effective, and carry out it in an orderly manner according to law, thus playing a positive role in purifying the market.
□ Our reporter Zhang Wei
□ Our trainee reporter Luo Congran
Recently, professional counterfeiters have once again fallen into the whirlpool of public opinion.
Regulatory authorities, businesses and consumer associations have accused professional counterfeiters of making profits, and this trend cannot last long. However, there are also views that professional counterfeiters should not be stigmatized. After all, they prevent the illegal impulse of operators to a certain extent and are conducive to improving the quality of goods. So, are professional counterfeiters moths or woodpeckers?
The reporter of Legal Daily found in many places that the routine of professional counterfeiting is getting deeper and deeper, even showing a trend of gang, specialization, scale and stylization, which is embodied in mentoring, training and output, and focusing on packaging and publicity defects. In this regard, relevant experts call for a clear boundary between legitimate rights protection and extortion, so as to effectively protect consumers’ rights and interests and maintain market operation order.
Share tutorial teaching experience
Professional counterfeiting into an industrial chain
Go to the mall to buy something, and then go to the merchant with the invoice and goods to pay for it — — If anyone is still using such a primary way, it is estimated that they are embarrassed to mix in the circle of professional counterfeiting.
Professional counterfeiting has already formed an industrial chain. According to a survey conducted by the reporter of Legal Daily, there are more than 3,000 group chat accounts with "professional anti-counterfeiting" and "anti-counterfeiting" as the key words on QQ, among which there are many large groups with thousands of people, and a large number of professional claimants are mixed in these groups.
In many group documents, there are a lot of relevant materials for carrying out professional claims, including anti-counterfeiting ideas, report words, bad review texts, legal provisions, withdrawal samples, civil indictments, etc., and some people customize fake identification books, quality inspection reports, hospital certificates, etc.
In these groups, there are both "old hands" who are familiar with relevant laws and regulations and a large number of "little whites" who have just entered the business. Newcomers can learn the free basic tutorials shared by the group, or they can pay the "fare" for the veteran to take "on the bus". In jargon, "getting on the bus" refers to forming a group with others to make a single order; "Getting off the bus" is the success of the action; "Fare" means to give money to others as a benefit when you get on the bus with others.
The reporter of "Legal Daily" learned as Xiaobai that the fee for a veteran to take it once is usually around 30 yuan, and if he is a teacher, he can always learn the whole set. A veteran who has received more than a dozen apprentices told the reporter of Legal Daily that the tuition fee for his apprentices was 499 yuan, and he returned to the book on the same day. "One order is 500+, and two or three orders a day are no problem, and the profit is very large."
In the course "Xiao Bai must watch", the reporter of "Legal Daily" found that there are two main ways to play professional counterfeiting: "eating goods" and "compensation". "Eating goods" means applying for a refund after receiving goods but not returning them; "Compensation" means asking the merchants to pay high compensation by means of reporting and prosecution.
A veteran said, "The game of eating goods is the simplest. After receiving the goods, first consult the merchant for a refund; If you don’t agree, apply for the platform to intervene, then get a fake appraisal, sell it for 10 yuan outside, and upload it. If you are buying food, those foods are easier to drink. After receiving the goods, puncture one or two bags with a needle, take a photo and upload it, and the whole box will be yours. As long as you have a mind, eating food is also a lot of wealth, because it doesn’t require principal. I buy it in bulk and then sell it. "
After contacting many veterans, the reporter of Legal Daily learned that although "eating goods" is simple, veterans are more willing to make "compensation" because they can get several times compensation.
According to the tutorial shared in the group, there are the following processes to play "compensation": members choose the target goods to place an order, usually products with limit words and no Chinese logo; Negotiate with the seller after the goods arrive, and negotiate 3 times compensation on the grounds that it does not meet the legal requirements; If the seller is more car-scrapping, he will report it on the platform or complain at 12315. At this time, many sellers will recognize it; If the seller still insists, he can sue to the court. At this time, the seller will basically compromise if he has to consider issues such as cost and time.
Threaten merchants to break the money and avoid disaster.
Claim for impure purpose succeeded.
As the saying goes, "flies don’t bite seamless eggs", but these despicable means have obviously changed the taste of counterfeiting.
The most direct victim is naturally the operator. Kobayashi, the owner of the online shop, told the reporter of Legal Daily that a product sold in his shop was complained to the market supervision department by a buyer who had just registered for a short time and had zero reputation evaluation because of the flaws in the label. Kobayashi immediately reported the rectification to the factory, but the buyer’s purpose was not simple. In the subsequent negotiations, he asked Kobayashi for money on the condition of withdrawing the lawsuit.
"I hope you understand that it is better to do more than one thing … … You open the price, I cancel it. "Seeing the message popped up in the dialog box, Kobayashi realized that the store was targeted by professional claimants. At first, Kobayashi didn’t want to compromise, but then another account contacted Kobayashi and threatened to call people to "play" the top-selling products in his store. Fearing that there would be trouble in the future, Kobayashi finally chose to break the bank and transfer money to 500 yuan for personal settlement.
After receiving the money, the buyer sent Xiaolin a screenshot of his cancellation on the complaint platform to show "integrity". From this screenshot, Kobayashi saw that the buyer had complained about at least 30 companies. Xiaolin reported the abnormal claim of the account to the e-commerce platform, and the account has been blocked at present. However, Kobayashi still has a lingering fear, fearing that he will be repeatedly entangled.
Xiao Lin’s experience is not an isolated case. In recent years, such cases of abuse of consumer complaint reporting channels are not uncommon. Some people even find that they can profit from this after being extorted money, and instead learn from each other how to complain and how to extort money.
The defendant Tao is one of the representatives. Around 2017, Tao, who used to be the owner of an online shop, was blackmailed by others on the grounds that there were limit words in the product description. However, Tao did not learn from it. Instead, he thought it was a way to make money, and paid tuition fees to learn from the other party the method of extorting money, from the victim to the perpetrator.
After that, Tao and his associates searched the e-commerce platform for shops with extreme words in the product introduction, and then divided their work. Some people were responsible for purchasing goods and applying for refunds, while others were responsible for complaining to the e-commerce platform, and attached PS pictures and QQ contact information that had been complained to the market supervision administration. After the merchants take the initiative to add QQ, they are threatened to pay a certain fee to cancel the complaint.
Recently, the Nanhu District People’s Court of Jiaxing City, Zhejiang Province publicly pronounced this case. Defendant Tao Mou and other three people used malicious complaints and threats as a means to extort money from nearly 10,000 e-commerce platform stores, among which more than 400 stores were successfully extorted, disturbing and undermining the normal business order of businesses, causing adverse effects, and were sentenced to fixed-term imprisonment and fined accordingly.
"Whether the business is illegal or not shall be determined by the industrial and commercial department. Professional counterfeiters take advantage of businessmen’s ignorance of the law and fear of trouble, and often succeed. This kind of behavior not only does not purify the network environment, but also wastes a lot of administrative resources. " Gao Yandong, director of the Internet Law Research Center of Guanghua Law School of Zhejiang University, believes that counterfeiters should focus on real fake and shoddy products, instead of making laws and regulations a tool for personal gain and faking in the name of counterfeiting.
Professional anti-counterfeiting claim
Arbitrarily occupy law enforcement resources
The regulatory authorities also feel deeply about the specialized claims of professional counterfeiters.
In the "procedures" of professional counterfeiters, it is an important part to complain and report to the regulatory authorities, resulting in a substantial increase in the number of complaints and reports received by relevant departments.
According to the data provided by Shenzhen Municipal Market Supervision Administration, in 2017, more than 76,000 complaints and reports of occupational claims were received, which rose to more than 176,000 in 2018; In the first half of 2019, under the cooperation of Shenzhen market supervision department and several law enforcement and judicial organs, the phenomenon of occupational claims has been curbed to some extent, and the number has declined, but there are still more than 28,000 cases.
Fang Canyu, a five-level law enforcement officer of the Market Inspection Bureau of Shenzhen Municipal Market Supervision Administration, told the reporter of Legal Daily that although the number of complaints and reports about professional claims is very large, less than two-tenths of them really involve product quality problems and valuable clues. Professional claim groups often make malicious complaints and threats to businesses on a large scale in order to gain illegal interests; Most of the law enforcement resources are used to deal with professional claims reporting and its subsequent information disclosure, administrative reconsideration and litigation, discipline inspection and supervision, etc., resulting in improper occupation of law enforcement resources.
Combining with the first-line work experience of nearly 10 years, Fang Canyu said that there are two main profit models for professional claimants at present: one is the traditional professional claim, which is to buy goods on the spot, leave shopping receipts, and some even take shopping images and videos, and make civil claims through the right of claim given by the Consumer Law and the Food Safety Law. They mainly concentrate on their activities near their place of residence, and usually adopt the mode of reporting to the market supervision department and complaining for compensation from the merchants. If it fails, some will file a civil lawsuit for compensation with the court and file a reconsideration lawsuit with the market supervision department.
The other is online professional claim, which mainly uses e-commerce platform to carry out illegal and criminal activities, especially in the field of advertising. Most professional claimants do not buy goods in essence, but take screenshots to collect evidence after paying on the online platform, cancel the transaction directly, and then pretend to be consumers, in order to report the illegality and threaten to obtain benefits.
"Administrative organs handle complaints and reports in order to protect consumers’ rights and interests and standardize economic order. Whether it is a label issue or a limit word issue, if it does not cause misunderstanding to consumers, it is a minor violation of the law and can be punished according to the provisions of the Administrative Punishment Law. " Fang Canyu said.
The "Legal Daily" reporter noted that similar regulations have been introduced in many places. For example, in August this year, the Market Supervision Bureau of Wuhu City, Anhui Province issued a list of impunity for minor business violations, and the first batch sorted out 50 minor illegal acts that were not punished, covering advertising supervision, license supervision, product quality supervision, food safety supervision and other fields.
A person in charge of the Consumer Protection Department of a certain market supervision bureau, who did not want to be named, said in an interview with the reporter of Legal Daily: "Professional counterfeiting should have helped government departments to purify the market environment, so it should be good ‘ Woodpecker ’ But now a large number of professional claimants are completely for their own profit, regardless of whether the market environment is purified or not, not to solve problems. "
"It is conservatively estimated that half of the energy of grass-roots market supervisors in a year is used to deal with professional claims. The resources consumed by professional claims are four to five times that of normal complaints. Public resources are squandered by a few gangs, but the problems that really affect consumers and market operation order cannot be dealt with." The above-mentioned person in charge said, "In addition, there are a large number of college students involved in professional claims, which is more terrible than wasting administrative resources. The idea of getting something for nothing has corroded too many people."
Occupational claims should be regulated.
Crack down on extortion according to law
With the harmfulness of occupational claims becoming more and more obvious, regulating occupational claims has gradually become the consensus of the whole society.
On August 8th, the General Office of the State Council issued the Guiding Opinions on Promoting the Healthy Development of Platform Economy, explicitly cracking down on extortion in the name of counterfeiting.
In terms of public security organs, in recent years, police in many places have cracked down on criminal gangs claiming professional compensation in the name of eliminating evils and smashed many black and evil gangs.
In the judicial aspect, the Supreme Law stated in the "Reply to Proposal No.5990 of the Fifth Session of the Twelfth National People’s Congress" in May 2017 that "punitive damages are used to make profits for themselves or take the opportunity to extort money from businesses … … Waste of judicial resources, we do not support this governance model of punishing evil with evil and quenching thirst with poison. "
In terms of market supervision, Shanghai, Dongguan, Hangzhou and other places have taken the lead in issuing documents to explicitly crack down on malicious claims. Taking Shanghai’s Guiding Opinions on Effectively Dealing with Occupational Reporting of Occupational Claims and Maintaining the Business Environment as an example, this paper puts forward the establishment of an abnormal list of occupational claims, and the establishment of an inter-departmental cooperation mechanism and related joint meetings to deal with occupational claims and occupational reporting, so as to strengthen the convergence of execution.
During the interview, Judge Cheng Chunhua, a national expert in trial business and a member of the Judicial Committee of Dongguan Intermediate People’s Court of Guangdong Province, told the reporter of Legal Daily: "Not all the cases we handle do not support professional counterfeiting. According to the legal provisions and the current actual situation, professional counterfeiters have certain existence value and cannot be used for professional counterfeiting ‘ One size fits all ’ The method, our duty is how to regulate them and prevent the chaos of malicious complaints and extortion in the name of counterfeiting. "
Cheng Chunhua said that combined with the current disputes, it can be seen that professional counterfeiting should not be an industry that everyone can use to make a living or make money. In view of professional counterfeiting, some standards and procedures should be formed in the future, so that professional counterfeiters can truly achieve professionalism, give them certain normative guidance, make their counterfeiting more professional and effective, and carry out it in an orderly manner according to law, thus playing a positive role in purifying the market.
"There is no doubt that we should severely crack down on acts that harm consumers’ rights and interests, but enterprises that only have some defects in selling goods cannot be repeatedly attacked without principle. We should properly exercise our discretion and impose appropriate penalties according to the characteristics of subjective malice of enterprises, the degree of harm to consumers’ rights and interests, the size of enterprises and illegal profits. Only in this way can we effectively reduce the resistance of business operators to professional counterfeiters and jointly optimize the business environment. " Cheng Chunhua said.
Gao Yandong believes that the phenomenon of professional claims needs the docking of civil and criminal cases and joint regulation. "In the civil law, to fill the legal loopholes that professional claimants may drill, the scope of application of punitive damages should be adjusted, and the goods with qualified quality and only formal defects should be excluded from punitive damages, and their profit-making behaviors such as simple labeling and extreme words should be restricted, and they should be guided to the direction of truly cracking down on unqualified products. At the level of criminal law, professional claimants who are involved in a large amount of money and have serious social harm are punished by extortion and provocation, and a legal red line is established. "
"Counterfeiting cannot be ‘ Fake ’ Only by regulating professional claim groups and clarifying the behavioral boundaries between legitimate rights protection and extortion can we strengthen consumer rights protection and optimize the consumption environment. " Gao Yan said.
Cartography/Li Xiaojun
   
