This post was completed by me in cooperation with a friend named Chen, and the author of the official publication is only a friend named Chen. This post was only posted on China Red Shield Forum, this blog and my QQ space, and was adopted by Chengdu Industry and Commerce. In view of the fact that this article was mistaken for plagiarism in the submission, it is hereby stated that if other colleagues have collected the original post and need to reprint it, please let me know. This article is the only one that I allow others to use it in a name other than my own, and it is only used in Chengdu Industry and Commerce.

(The first draft was completed on 25.11.2112, and it was revised later)

In recent years, our bureau has received endless complaints and reports from professional counterfeiters. After the promulgation of the Food Safety Law, the complaints and reports from professional counterfeiters are more concentrated in the field of food circulation. In practical work, some industrial and commercial departments have been reconsidered due to negligence in accepting and responding to complaints and reports, or misjudged cases have occurred from time to time due to inaccurate grasp of relevant legal provisions, which undoubtedly sounded the alarm for our work. Here, the author does not discuss legally whether professional counterfeiters are regarded as consumers, but only discusses how to deal with complaints and reports correctly after receiving them.

1. Issues that the administrative department for industry and commerce should pay attention to when handling complaints.

according to article 16 of the interim measures for the administration of industry and commerce to accept consumer complaints, the administration of industry and commerce should make a decision on accepting or not accepting the complaint within 5 days from the date of receiving the complaint, and notify the parties in writing, so we must pay attention to the way and time limit of notification. As can be seen from Article 7 of the Measures, if the case of accepting consumer complaints is a civil dispute, the mediation system shall be implemented. Compensation is usually involved in mediation, so under what circumstances does the seller need to bear the liability for compensation?

according to the provisions of article 35 of the law on the protection of consumers' rights and interests, it can be known that only when the operator's infringement causes damage or loss to the legitimate rights and interests of consumers, or when consumers or other victims cause personal or property damage due to commodity defects, the operator will be liable for compensation, and if no actual damage is caused, it will not be liable for compensation, and the occurrence of damage is the basic element of damage compensation. According to Article 22 of the Interim Measures for the Administration for Industry and Commerce to Accept Consumers' Complaints, the parties concerned shall provide evidence for their complaints, and the parties concerned shall provide the basis for the damage to their legitimate rights and interests. According to the distribution principle of burden of proof in our country, if consumers want to apply the provisions of punitive damages system, they must also prove that the operator has the intention of fraud subjectively.

since the implementation of the food safety law, food has become the key complaint reporting area for professional counterfeiters, especially in shopping malls and large supermarkets. According to the provisions of Article 96 of this Law, those who violate the provisions of this Law and cause personal, property or other damage shall be liable for compensation according to law; In the production of food that does not meet the food safety standards or the sale of food that is known to fail to meet the food safety standards, consumers can demand compensation of ten times the price from the producer or seller in addition to compensation for losses. From this point of view, there are two prerequisites for the seller to bear the liability for compensation: first, the food involves safety standards (Article 21 of the Food Safety Law stipulates the main contents that food safety standards should include), and second, the seller "knows" but still sells (not should know). Here, the consumer also bears the burden of proof to prove that the seller "knows".

according to our daily supervision, shopping malls and large supermarkets usually fulfill their statutory inspection obligations in purchasing and make food incoming inspection records. Some food enterprises that implement unified distribution mode have also adopted the method of unified inspection of suppliers' licenses and food qualification certificates and food incoming inspection records by enterprise headquarters according to Article 39, paragraph 4 of the Food Safety Law, and enterprises can usually prove that they are not "knowingly". Even if the operator fails to carry out the inspection according to the regulations, we can't take it as the basis of "knowing". We must have conclusive evidence to determine that the seller is "knowing". If the seller fails to fulfill the statutory inspection obligation and inspection record obligation, the industrial and commercial department may order it to make corrections according to Article 87 of the Food Safety Law, and impose penalties such as fines if it refuses to make corrections.

2. Problems that the administrative department for industry and commerce should pay attention to when handling reports.

professional counterfeiters usually attach a report when they complain. Article 19 of the Regulations on Administrative Punishment Procedures of the Administration for Industry and Commerce stipulates that "for complaints, reports and appeals that are not filed, after the approval of the person in charge of the administration for industry and commerce, the case-handling agency will inform the named complainant, complainant and informant of the results. The administrative department for industry and commerce shall keep a written record of the situation of not filing a case. " Article 58 of the measures stipulates that "if the administrative department for industry and commerce makes a decision on administrative punishment, refusal of administrative punishment, cancellation of the case, transfer to other organs, etc. on the illegal suspects involved in complaints, reports and appeals, it shall inform the investigated person and the named complainant, complainant and informant of the handling result." Therefore, the industrial and commercial department should inform the complainant when the incident complained by the named complainant is not filed, and should also inform the complainant of the handling result if the incident complained is filed for investigation or dismissed or transferred.

The Food Safety Law is a law with many contents and many jurisdictions. In fact, some of the complaints of professional counterfeiters about food can not be put on file for investigation by the industrial and commercial departments, so we should carefully screen them.

when accepting the complaint, our bureau encountered the case that the complaint operator sold the food with false and exaggerated advertising content, saying that the propaganda language of the food used the prohibited language in a certain regulation. In this regard, we should first make it clear whether the Ministry's regulations authorize the industrial and commercial departments to have jurisdiction, and then we should make it clear whether it belongs to false content, because the appearance of prohibited content does not mean that the content is false. If it is false, it needs to be "proved" and cannot be proved, so we can only apply the corresponding penalties stipulated in the prohibition.

according to the first paragraph of article 48 of the food safety law, it can be seen that the producer is responsible for the contents stated in the labels and instructions, but these "falsity" are usually not implemented by the seller. Article 54 of the law stipulates that the contents of food advertisements shall be true and lawful, and shall not contain false or exaggerated contents, and shall not involve the functions of disease prevention and treatment. According to the provisions of Article 94 of this Law, those who make false propaganda about food quality in advertisements and deceive consumers shall be punished in accordance with the provisions of the Advertising Law, while Article 37 of the Advertising Law of the People's Republic of China punishes the subject who makes false propaganda about goods or services through advertisements, which does not authorize the industrial and commercial departments to punish the sellers who sell products with false advertising contents. The Anti-Unfair Competition Law also punishes the subject who carries out false propaganda, and does not authorize the industrial and commercial departments to punish the sellers who sell products with false propaganda content, so the industrial and commercial departments cannot punish such sellers.

In accepting complaints from professional counterfeiters, our bureau also encountered complaints about the sale of food containing drugs in a shopping mall. Article 51 of the Food Safety Law stipulates that "drugs shall not be added to the food produced and operated", but in Chapter 9 of the Food Safety Law, "legal liability" does not stipulate that the sale of such products requires legal liability. Item (4) of Article 86 of the Food Safety Law stipulates that "in violation of the provisions of this Law, in any of the following circumstances, the relevant competent departments shall, according to their respective functions and duties, confiscate the illegal income, food illegally produced and operated, tools, equipment, raw materials and other items used for illegal production and operation; If the value of food illegally produced and operated is less than 11,111 yuan, a fine of more than 2,111 yuan and less than 51,111 yuan shall be imposed; If the value of the goods is more than 11,111 yuan, a fine of more than two times and less than five times the value of the goods shall be imposed; If the circumstances are serious, it shall be ordered to stop production and business until the license is revoked: (4) Food producers and operators add drugs to food. " The meaning of this item is very clear, which is to punish the food producers or food operators for adding, and the drugs in this complaint were added to the food in the production field, not the operators, so although the industrial and commercial departments can manage the food in the circulation field, they have no right to investigate and deal with this "sales behavior" without legal responsibility according to the Food Safety Law.

in addition, the same is true for foods made from non-food raw materials or foods with chemical substances other than food additives, or foods made from recycled foods. Article 28 of the Food Safety Law prohibits production and operation, but it does not stipulate that the sale of such products requires legal responsibility. Item (1) of Article 85 of the Food Safety Law only stipulates that "producing food with non-food raw materials or adding chemicals other than food additives to food, or producing food with recycled food as raw materials" requires legal responsibility, and our law enforcement agencies cannot add the legal responsibility of "sales behavior" at will. Not only the industrial and commercial departments, but also the Measures for the Supervision and Administration of Food Safety in Catering Services formulated by the Ministry of Health according to the Food Safety Law stipulates that it is illegal for restaurants to add drugs, and the punishment is also the addition behavior, not the sales behavior.

However, some industrial and commercial departments are still applying the provisions of Item (1) of Article 85 and Item (4) of Article 86 of the Food Safety Law to punish operators who have not implemented production or addition, which leads some professional counterfeiters to reconsider the industrial and commercial departments that we have not filed for investigation. This is because the industrial and commercial departments have filed for investigation when they complain in other local industrial and commercial departments.