【Cases back】

On May 15, 2016, the plaintiff purchased two Wenger NOBLR brand black trolley cases at the Flagship store opened by the defendant at a flagship store opened by an e -commerce company, totaling 498 yuan. The explicit introduction on the flagship store’s high -end password lock on the flagship store adopted the term “the best quality lock core and the best raw material are refined”. The plaintiff complained to the Industry and Commerce Institute, and the two sides were unsuccessful. On June 17, 2016, the defendant signed the “Notice of Order Correction” issued by the Market Supervision and Administration Bureau, and issued the situation to acknowledge that the advertising term was admitted, and the investigation and rectification was conducted as soon as the merchant complained.

The plaintiff believes that the defendant’s behavior has constituted a fraud to consumers, and requested the court to order the defendant: 498 yuan for the shopping money of the trolley case; the loss of 1,494 yuan in accordance with the three times compensation.

The court in the first instance held that according to the situation issued by the defendant to the administrative department, it can be seen that the defendant did not have the intention of fraudulent consumers, and the plaintiff had no evidence to prove it. The plaintiff had no evidence to prove that the password lock had a quality problem, and did not conduct specific consultations or clearly agreed with the defendant. Therefore, the defendant’s behavior was not enough to constitute a fictional fact or concealed the truth. The plaintiff only purchased it lightly with the absolute advertising language of the password lock. It was not fulfilled with a reasonable and cautious obligation, which did not belong to the wrong expression. Therefore, the judgment rejected the plaintiff’s claim. The second instance maintained the first instance judgment.

【Different opinions】

The first point of view is that the Chinese advertising law stipulates that advertisements must not use absolute words such as “national”, “highest level”, and “best” to ensure the authenticity of the advertisement and maintain a fair competitive environment in the market. In response to the advertising behavior of the defendant involved in the case, the Market Supervision and Administration Bureau issued the “Notice of Order Correction” to it. Advertising terms and rectification. Therefore, the defendant’s advertising behavior involved in the case violated the relevant laws and regulations, and it was easy to attract misunderstandings, which was enough to constitute a fraudulent behavior to consumers.

The second point of view is that judging whether it constitutes the fraudulent behavior of the operator, and it should meet the constituent elements of the component of the fraudulent person because of the misunderstanding of the fraud. The operator has the obligation to inform the real information, and the information of providing consumers with relevant commodities or services should be true and comprehensive. Especially in the online shopping environment, consumers’ information obtaining channels for goods depends more on the factors of the operator’s truthful publicity. In general, consumers’ shopping purposes are concerned, the purpose of the trolley case is the loading and convenient transportation of items. Safety is one of the main parameters of the trolley case. How does the quality of the password lock that represents security is the consideration of many consumers. The defendant in this case has false and exaggeration about the advertising publicity of the password lock. The plaintiff as a consumer was misleading, and only made a decision to purchase a trolley case involved in the case.

The third point of view is that the punitive compensation system is an exception system in civil law. It is a special punishment system that uses private law mechanisms to achieve the purpose of punishment and deterrent purpose of public law. Therefore, it should be strictly grasped in applications. Although the absolute advertising term may be misleading due to its exaggeration, it is not necessarily a fraud. The relevant punishment measures of the administrative organs do not mean the composition of civil liability. It should be judged in accordance with the constituent elements of fraud, that is, there are four requirements for fraud, intentional fraud, deliberate fraud, caught the wrong understanding, and make the fraudulent person: unrealistic meaning based on the wrong understanding.

【Judge response】

Advertisements that violate the absolute use of words do not necessarily constitute fraud

Absolute advertising term refers to an exaggerated advertising language that does not meet objective conditions or is not restricted by time and space, describing the description of things to a certain extreme state. In order to attract consumers, adopting absolute use of advertising for advertising has become one of the means of marketing of operators, but it is easy to mislead consumers or have an improper competitive effect on the industry. The common point of absolute advertising terms and fraud, that is, the irreplaceable information. Whether an operator violates the ban on the absolute use of the use of the use of the absolute use of the use of the use of the consumer’s general attention, the actual situation of the propaganda target, the facts of the misunderstanding, and the experience of daily life shall be comprehensively judged.

1. Advertising content that violates the absolute use of words shall constitute the important terms of the contract

Important clauses refer to the terms that can affect consumers’ purchase expectations and the realization of the purpose of the contract. The operator’s advertising propaganda will involve all aspects of the product, and the main performance, functions, and quality of the product directly affects whether the purpose of consumers and operators can be achieved. Especially when the online shopping environment is constantly mature, consumers have gradually become the main way to improve shopping efficiency and targeted through the Internet publicity. Therefore More. If you use absolute use of absolute words for advertising in the important terms of the contract, the false information is widely reported, and the maliciousness of fraud is even worse, and the damage is heavier. For example, absolute advertising terms are adopted for unrelated subsidiary components or functions. It is not attracted to ordinary consumers, nor will it directly affect consumer shopping decisions, and it should not be determined to be fraudulent. Essence The goods involved in this case are trolley cases. Important components include lever, handle, shell, rolling wheel, password lock, inner bundle band, etc. The key use of the trolley case is the loading and convenient transportation of the item. Safety is one of the main parameters, and the quality of the lock representing security is an important consideration for many consumers. The defendant adopted an absolute advertising term for the password lock of the trolley case on the publicity webpage to form an important terms of the contract.

2. Violation of absolute advertising term ban is not the same as that of the quality of the product.

The punitive compensation system is based on deterrence and punishment, and the error level of the perpetrator needs to be identified. The purpose of absolute advertising term is to exaggerate the content of propaganda, misleading consumers or incorrect competitive effects on the industry. Depending on the exaggeration of its exaggeration, the identification of the fault is also different. For example, if the product itself is a fake and shoddy product, the operator uses absolute use of words to advertise, obviously has a subjective mentality of deceiving consumers and hoping to achieve a transaction with consumers to make a profit, which constitutes the intention of fraud. If the product meets the requirements of quality standards, the operator uses absolute advertising term to use the high quality level. Although it may also cause misleading consumers, the subjective maliciousness may not be identified as fraud. Combined with this case, although the defendant used an absolute use of the password locks of the trolley case involved in the case, there was no evidence to prove that the password lock was in quality issues such as the second charging, counterfeiting and inferior. It acknowledged that it violated the absolute quantification of the ban on the use of the language, and stated that it had been investigated and rectified as soon as it was received by the customer’s complaint. It also signed the “Notice of Order Correction”, so it was difficult to determine that the defendant had the intention to publicize the fraud through advertising. The punishment measures for the act of absolute advertising term do not mean the composition of civil liability.

3. Consumers should have basic rational judgment ability when shopping

Consumers have the right to purchase goods. They should fully consider their own needs and judge carefully, and ask the operator to ask the operator’s situation if necessary. It should be assumed that consumers have a rational judgment ability to ordinary goods, so as to determine whether the operator’s behavior may cause a rational ordinary consumers to misunderstand with ordinary attention. In the online shopping contract dispute, consumers often propose to buy related products due to the wrong understanding of the operator’s improper advertising. The plaintiff in this case claims that the defendant has fraud, which mainly believes that the goods involved are not called “the best -quality lock core” in the advertisement, and it is misleading to make purchase behaviors. The trolley case involved in the case is a daily ordinary commodity. The plaintiff is a full -scale civil behavior capable person, and the main parameters of the purchased products should have basic common sense judgments. It can determine whether to purchase the tiebox according to the advertising page information or inquiry on the advertising page information or the operator. During the formation of the contract, the plaintiff did not conduct specific consultations with the defendant or a clear agreement on the quality of the product lock core involved in the case; it also did not submit a higher requirements for the security of the lever box to the defendant. In addition, the plaintiff’s quality of the quality of the lock core of the product and the extent of the existence of the advertisement is only for the general subjective statement, nor can it be provided for specific explanations. In addition, combined with daily life experience, the pricing of the lever box involved in the case is more than 200 yuan. The pricing in similar products is not high. It is obviously not common sense to obtain “the best quality lock core” and “best raw materials” at such prices. Therefore, the plaintiff only placed the order with an absolute advertising term, and did not fulfill the reasonable obligation. The plaintiff’s purchase of the goods involved is not an error expression, and the corresponding consequences should be borne by the plaintiff.

4. Proof of responsibility and certification standards

The parties who advocate that rights are obstacle shall bear the responsibility for proof of the basic facts of responding to the basic facts of the right to deal with the right. Although the legislative focus of the Consumer Rights Protection Law is to protect consumers’ disadvantaged positions due to information asymmetry, consumers claim that they are fraudulent during the consumption process, and they still shall proof Establish. Some views believe that the standards of proof of fraud should be raised from “highly linked” to “reasonable doubt”. The author believes that “exclusion of reasonable doubt” is a reference from the Chinese and American evidence system and theory of the criminal lawsuit law, which is significantly higher than the “highly linked” certification standard for civil lawsuits. The height of the certification standard needs to be weighed between the severity of the lawsuit and the authenticity of the facts to be proved. The severity of the results of criminal proceedings is obviously higher than that of civil litigation, and the degree of facts in pursuit of facts are also high, so higher certification standards should be applied. For the result of fraud, due to the “zero -sum game” (that is, all support or rejection), compared with ordinary civil lawsuits, it is still not comparable to the severity of the results of criminal lawsuits. Therefore, the “excluding reasonable doubt” standard here should not be considered directly introduced by criminal litigation standards. In fact, under the “height” proof standard, it is difficult to determine that such facts are determined, and it is even more difficult to improve the victim’s certification standards. Especially in the field of consumer rights protection, such as strict grasp of the standards for “excluding reasonable doubt”, it is easy to increase the obligation of proof of the consumer, which is not conducive to rights protection. Therefore, the author believes that the standards for the proof of fraud in judicial practice should not grasp the strictness. At the same time, the judge should strengthen the identification of relevant evidence proof and the understanding of the rule of experience.

(Author Unit: People’s Court of Pudong New District, Shanghai)