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Recently, Lawyer Li Yiying of JAVY Law Firm was interviewed by the Procuratorate Daily Justice Network to explain the food safety issue in relation to the case that Ms. Wang from Chongqing sold 150 bowls of Braised-pork(Chinese Local food-Kourou) and was awarded ten times the compensation by a professional anti-counterfeiter. Lawyer Li Yiying said that the law does not prohibit buyers from purchasing and claiming for food and medicine knowing that there is a quality problem.

A small workshop in Chongqing was sentenced to ten times the compensation for selling 150 bowls of "three no products" with Braised-pork, which caused heated discussions in the society, and was once ranked first in the hot search on Weibo. Previously, there were similar incidents that attracted the attention of the whole network. In these incidents, "professional counterfeiters" were mentioned. After the party involved in the Chongqing Braised-pork Case cried out on the Internet about his experience of being "fighted against counterfeiters", the other party in the case did not deny his identity as a "professional anti-counterfeiter" in the face of abuse from a large number of netizens, but he was right in insisting on defending his rights.

（Pictures from the Internet）

Lawyer Li Yiying

According to the existing precedents, the position and basis of the rights protection of "professional anti-counterfeiters" are mainly based on the provisions of Article 148 of the "Food Safety Law" and Article 55 of the "Consumer Rights Protection Law", that is, the consumer , the identity of the purchaser, according to the "Food Safety Law" and "Consumer Rights Protection Law" punitive damages mechanism to obtain ten times or three times the high compensation.

How to characterize the behavior of "professional anti-counterfeiters" who know fakes and buy fakes has always been a big controversy in practice. In this dispute, the main points of disagreement are whether "professional counterfeiters" belong to "consumers", and the other is whether the court should support the claim in the form of knowing fakes and buying fakes. Article 3 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Food and Drug Disputes. The people's court will not support the defense on the grounds of purchasing the food or medicine knowingly that there is a quality problem.

In this judicial interpretation, the Supreme People's Court made positive provisions on the above two points of disagreement. It is worth noting that this provision also limits the fields of food and medicine, that is to say, in other consumption fields, claims in the form of knowing fakes and buying fakes are not supported by law.

Regarding the punishment of small workshops in Chongqing, the opinions of netizens are currently divided into two groups. Some people think that the punishment is too heavy and express sympathy;

Others believe that when it comes to food safety, heavy fines should be used to regulate the production of small workshops.

The "Product Quality Law" stipulates that the product must have the Chinese factory name, Chinese factory address, telephone number, license number, product logo, production date, Chinese product manual, and if necessary, it needs to have limited or indicative instructions, etc. From the perspective of market management, it is an indisputable fact that ‘Three -no-products’ violate the law.

However, Paragraph 2 of Article 148 of the Food Safety Law stipulates: In addition to claiming compensation for losses, consumers may also file a claim with The producer or operator demands compensation ten times the price or three times the loss.

If the amount of increased compensation is less than 1,000 yuan, it shall be 1,000 yuan. However, the labels and instructions of food have defects that do not affect food safety and do not mislead consumers. The tenfold punitive compensation in this clause is based on the damage to the consumer. If the consumer does not eat it or eats it but is not injured, the seller or producer is required to bear tenfold compensation. This is obviously unfair.

Specifically in this case, the 150 bowls of Braised-pork sold by Chongqing Xiaofang should be identified as products that do not meet food safety standards, and the merchants should be responsible for returning them and refunding fees. However, the professional anti-counterfeiter who is a consumer is obviously not harmed, so whether the small workshop needs to pay ten times the compensation for it depends on how the court decides in the retrial.

Even if Mr.Shao is a professional anti-counterfeiter, the law does not prohibit him from making legitimate claims as a consumer or buyer. Merchants or related personnel face up to ten times the punitive damages, but the damage caused by the food problem should be proved by the plaintiff to demonstrate fairness.