Viewpoints. The impact and guidance of the Civil Code on the consumer protection system.

Before the promulgation of the Civil Code, China has formed a consumer rights protection system with the Consumer Rights Protection Law as the core, of which: the Consumer Rights Protection Law promulgated on October 31, 1993 is usually called "Comprehensive Consumer Protection Law", which reflects the rights and obligations between consumers and operators, it stipulates nine basic rights of consumers (including consumers' right to safety, the right to know, the right to choose, the right to fair trade, the right to claim compensation according to law, the right to association, the right to education, the right to respect and the right to supervision); Product Quality Law, Food Hygiene Law, Food Safety Law, Advertising Law, Anti-Unfair Competition Law, Anti-Monopoly Law, etc. are usually called "Individual Consumer Protection Law", the basic rights of consumers and the basic obligations of operators have been refined and extended.

Based on the legislative tradition of consumer rights and interests protection in the pre-civil code era, considering that consumer protection has both public law and private law, in order to meet the needs of civil law systematization and learn from extraterritorial legislative examples, China's Civil Code finally did not incorporate the Consumer Rights and interests Protection Law into the code as a whole, but stipulated the relevant contents of consumer protection through the General Provisions, Contracts, Real Rights, Tort and so on, and the legislative model of "general provision special authorization" is adopted. Article 128 of the Civil Code stipulates: "If the law has special provisions on the protection of the civil rights of minors, the elderly, the disabled, women, consumers, etc., it shall be in accordance with its provisions." The consumer protection law takes private law as the basic attribute, and further clarifies the relationship between the basic law and special law of the Civil Code and the consumer protection law, that is, the Civil Code provides general protection of consumer rights, special protection of consumer rights is provided by a one-way law. It marks the further improvement of China's consumer rights protection system and the further upgrading of consumer rights protection.

As the basic law of the consumer rights protection system, the Civil Code not only provides practical protection for the protection of consumer rights, but also has a far-reaching impact and guidance on the consumer rights protection system.first, in the legal principle,Throughout many consumer rights protection systems, they all embody the basic principle of "good faith", which requires operators to uphold honesty, abide by their commitments and abide by the law, which is an inevitable requirement for maintaining social and economic order and carrying forward socialist core values.in terms of specific rules,Through the system model of "Basic Law-Special Law-Supporting Provisions", the protection of consumer rights and interests is refined and improved. Examples are as follows:

In my country's civil legal system, the earliest provision of punitive damages is the "Consumer Rights Protection Law", which was later used as an exception to the general liability for compensation by other legal norms closely related to the protection of consumer rights and interests. In the compilation of the Civil Code, compared with the eight "ways to bear tort liability" listed in Article 15 of the Tort liability Law, the second paragraph of Article 179 clearly stipulates that "if the law provides for punitive damages, it shall be in accordance with its provisions", thus placing punitive damages in a juxtaposed position with the general way of bearing liability of filling and prevention. Of course, the second paragraph of Article 179 of the Civil Code, as a guiding provision, requires clear provisions of the law before punitive damages can be applied. In the current consumer rights protection system, the main provisions involved are:

◆ Article 55 of the Consumer Rights Protection Law (in case of fraud, compensation shall be 3 times the price or service fee, with a minimum of 500 yuan, and the operator shall compensate 2 times the loss when he knows that the goods or services are defective);

◆ Article 148 of the Food Safety Law (for those who produce food that does not meet the food safety standards or operate food that they know does not meet the food safety standards, they shall compensate 10 times the price or 3 times the loss);

◆ Article 70 of the Tourism Law (if there are conditions for performance and the request is still refused, causing serious consequences such as personal injury and detention, compensation shall be 1-3 times the travel expenses);

◆ "Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Tourism Dispute Cases" (Fa Shi [2010] No. 13) Article 17 (in case of fraud in the provision of services, compensation shall be twice the loss);

◆ Articles 8 and 9 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Disputes over Commercial Housing Sales Contracts (Fashi [2003] No. 7) (for those who conceal no (true) license, have been mortgaged, have been sold to a third party or resettled houses for demolition compensation, one house shall be sold for two and mortgaged again, compensation shall not exceed 1 time of the paid price), Article 14 (the house area is less than the agreed area and exceeds 3%, and the house price with an area error ratio of more than 3% shall be double returned to the buyer by the seller).

In addition to punitive damages stipulated by other laws, Article 1207 of the subdivision of tort liability of the Civil Code stipulates punitive damages in product tort liability, which stipulates that "if the product is still produced and sold knowing that there are defects, or if it fails to take effective remedial measures in accordance with the provisions of the preceding article, resulting in the death of others or serious damage to health, the infringed has the right to claim corresponding punitive damages", compared with Article 47 of the Tort Liability Law and Article 55, paragraph 2 of the Consumer Rights Protection Law, the situation of "no effective remedial measures have been taken in accordance with the provisions of the preceding article" has been added. As for the "corresponding punitive measures" "Compensation", if there are clear provisions in the "Consumer Rights Protection Law", "Food Safety Law", "Tourism Law", etc., special provisions shall apply, there is no special provision for the application of Article 1207 of the Civil Code, which leaves some room for the court's discretion and needs to be improved by other provisions.

The Civil Code explicitly incorporates punitive damages into the scope of civil liability and expands them appropriately, which helps to alleviate the negative impact caused by a large number of consumer infringements and improve the efficiency of social governance. While guiding the consumer rights protection system to clarify the relevant provisions of punitive damages, attention should also be paid to the systematic design of the system, in order to ensure that the definition of terms, the criteria for determining the qualification of the consumer subject, whether (or how) the subjective state of the infringer and the infringee should limit punitive damages, and the treatment of competing liabilities, the logic of the system is self-consistent and the applicable standards are relatively unified.

Article 496 of the Civil Code states that"The entry rules of the format clause.", compared with the" Contract Law "and the" (II) of Judicial Interpretation of Contract Law ": 1. The scope of the reminder obligation of the standard clause provider is expanded, and the reminder obligation of" clauses with major interests with the other party "is added (The provisions of Article 26 of the" Consumer Rights Protection Law "should be referred to and absorbed), that is, it is not limited to the clauses that exempt or reduce their responsibilities, all clauses that have a major interest with the other party should fulfill the reasonable obligation of prompting and explaining; 2. The requirement of prompting and explaining obligation is improved, which not only requires the other party to pay attention to the relevant clauses, but also needs to ensure the other party's understanding; 3. The legal consequences of the violation of the prompting and explaining obligation are clarified, that is, the other party can claim that the relevant clauses are not the content of the contract, and its inherent legal principle is that both parties have not reached an agreement", the clause was not established because of the lack of meaning to express the elements of the establishment of this contract. Compared with the "can apply for revocation" rule in the (II) of Judicial Interpretation of Contract Law, this reduces the litigation cost and cancels the restrictions during the exercise of the right of revocation, thus protecting the rights of consumers more concisely and directly.

Article 497 of the Civil Code provides that"Rules for the validity of form clauses"To determine that the standard clauses are invalid in three cases, that is, those who violate the provisions on the validity of civil acts, exclude the main rights of the other party, and unreasonably exempt or reduce their responsibilities, increase the responsibilities of the other party, and restrict the main rights of the other party, it should be noted that the standard clauses are invalid in the above three cases, regardless of whether they are explained or not. Compared with the provisions of the Contract Law on the invalidity of the form contract that "the party providing the form clause exempts its liability and increases the liability of the other party", the Civil Code adds the restriction of "unreasonable", and at the same time, adds the situation of "reducing its liability.

Article 498 of the Civil Code states that"Rules of interpretation of format clauses"If it is consistent with the contract law, I .e. the format clause and the non-format clause are inconsistent, the non-format clause shall be used.

From the relevant provisions of the current Civil Code, there is no distinction between the application of consumer contracts and commercial contracts, but in practice, the courts and arbitration institutions tend to be modest and cautious when the contract disputes between the two commercial subjects claim to apply the rules. The rules of standard terms originated from the "Consumer Rights Protection Law", so there is no objection to its application in consumer rights protection uniforms. However, under the legislative guidance of the Civil Code, the consumer rights protection system can reflect the special protection of consumers in the field of consumer rights protection compared with other commercial fields, and classify different application scenarios., And make more targeted provisions on the identification of "major interests", "reasonable tips", "understanding of the other party", such:

1. How to define"Significant InterestsArticle 3, paragraph 2, of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Cases by Internet Courts promulgated by the Supreme People's Court in 2018 stipulates that "if an e-commerce operator or network service provider enters into a jurisdiction agreement with a user in the form of standard terms, it shall comply with the provisions of the law and judicial interpretation on standard terms."

2. What manner can be recognized as"reasonable tips"? Usually, it is necessary to examine the prompt method, time, place, etc. Taking the Notice on Strengthening the Rate Management of Motor Vehicle Commercial Insurance Clauses issued by the CIRC on February 23, 2012 as an example, items 2 and 3 stipulate the obligation specification of prompt explanation of motor vehicle commercial insurance clauses:" Commercial vehicle insurance clauses shall be complete in content, clear in format and easy to read ". "The insurance company shall, in the most prominent position on the front page of the application form, add'special reminder of liability exemption' in red font number 4 or above, and make reminders sufficient to attract the attention of the insured for the exemption of the insurance company's liability in the insurance clauses, and adopt an easy-to-understand method to clearly explain the content of the clause to the insured in written or oral form. The insurance company shall prompt the policyholder to follow the letter of the policy 'special reminder of liability exemption': 'After the insurer has clearly stated that I have understood the content of the liability exemption' and signed it." Some scholars have also suggested that standard clauses should be divided into three categories based on the degree of deviation from the law: shield clauses that do not deviate from the law can be included without prompting; Sword clauses that deviate from the legal presumption of permission or weak exemption can be included with reasonable and significant general prompts. Hook clauses that deviate from strong permission or strong exemption specified in the law, in addition to meeting the reasonable and significant prompt criteria, A separate prompt is also required for inclusion. Of course, I'm afraid this kind of detailed regulations are not suitable for direct entry into the law, but they can be used as normative documents and judicial guidelines.

3. What circumstances may be recognized as"each other understand"? After signing the words" all contract terms are known ", can it be regarded as" understanding "? Can the consumer's handwriting" has understood the contents of the above instructions "be regarded as" understanding "? Can an electronic contract be identified as" understood "if it is checked at" read "? Taking the format contract in the field of e-commerce as an example, on July 30, 2014, the State Administration for Industry and Commerce issued the provisions of Article 9 of the Guidelines for the Standard of Standard Terms of Online Trading Platform Contracts (Industrial and Commercial City Zi (2014) No. 144) and the provisions of Article 49 of the Electronic Commerce Law, which need to be amended and improved under the guidance of the rules of the Civil Code, and special rules are set up for the entry control of the standard terms in the field of e-commerce.

In 2013, the "Consumer Rights Protection Law" was revised, and for the first time "personal information is protected" was determined as consumer rights, and the protection of personal information entered the scope of civil legal regulation. (The Law on the Protection of Consumer Rights and Interests stipulates that consumers have the right to protect their personal information in accordance with the law when purchasing and using goods and receiving services; business operators shall follow the principle of legality, legitimacy and necessity, clearly indicate the purpose, mode and scope of the collection and use of information, and obtain the consent of consumers; business operators infringe upon the right of consumers' personal information to be protected, should bear the corresponding civil liability, administrative liability and other legal liability.)

With the rapid development of economy and science and technology, APP and SDK(Software Development Kit, software development kit) illegally collect and process users' personal information from time to time, posing a serious threat to personal privacy protection. Illegal transactions of personal information are rampant, which always infringe on consumers' personal privacy. The abuse of new technologies such as face recognition has laid a huge hidden danger for the disclosure of personal biological information. Many personal information security chaos to promote the construction of personal information protection system.

In response to the above-mentioned hot issues and the need for the rule of law, the Civil Code has set up a special chapter "Privacy and Personal Information" in Chapter 6 of the Personality Rights Compilation, which specifically regulates the protection of personal information, and combines the general provisions of the General Provisions and the Personality Rights Compilation., As well as the relevant provisions of the Contract Compilation and Tort Liability Compilation, the institutional framework and foundation for the protection of personal information in my country's basic civil law are constructed. The Civil Code establishes the principle of "informed consent" for personal information processing. The operator does not inform the user of the purpose, method, and scope of collecting personal information, or collects the user's personal information without the user's consent; it does not mark the user's search, browsing history, usage habits and other personal information collected for targeted push or advertising precision marketing without the user's consent, and the failure to provide the option to turn off this function constitutes an infringement of the rights and interests of consumers and should bear corresponding responsibilities.

Under the command of the Civil Code, in recent years, the state has continuously introduced laws and regulations to ensure the security of personal information. Among them, on March 15, 2021, the State Administration of Market Supervision and Administration issued the Measures for the Supervision and Administration of Online Transactions (implemented on May 1, 2021, Order No. 37 of the State Administration of Market Supervision and Administration), regarding the collection of personal information of online consumers And the use has made detailed regulations to protect the safety of consumers' personal information.

The Data Security Law implemented on September 1, 2021 stipulates that "any organization or individual shall collect data in a lawful and legitimate manner, and shall not steal or obtain data in other illegal ways", and data processing activities shall not harm "individuals or organizations. Legal rights".

The Personal Information Protection Law, which was issued on August 20 and came into effect on November 1, 2021, as China's first separate legislation to protect personal information, complements the legal system of personal information protection in China. 1. It determines several exceptions that personal consent is not required for handling personal information; 2. Detailed regulations on "sensitive personal information" and separate consent are required; 3. In response to the phenomenon of "big data killing, special regulations on the necessity of personal information collection and processing," Regulations on the Scope of Necessary Personal Information for Common Types of Mobile Internet Applications "(Issuing Organs: State Internet Information Office, Ministry of Industry and Information Technology, Ministry of Public Security, State Administration of Market Supervision and Administration, Document No.: Guoxin Office Secret Zi [2021] No. 14, release date: March 12, 2021, effective date May 2021) will also cooperate with the need to pay attention to APP and other personal information collection; 4. Further refine the personal information situation rules; 5. Clarify the withdrawal of the right of consent, the right to carry personal information and other rights and exercise methods; 6. Formally introduce a public interest litigation system for personal information protection, stipulating that procuratorates, consumer organizations stipulated by law and organizations determined by the national network information department can initiate public interest litigation. On January 8, 2021, after the implementation of the Civil Code, the first civil public interest litigation case of personal information was initiated by the Xiacheng District Procuratorate of Hangzhou City, Zhejiang Province. The Hangzhou Internet Court publicly heard the case through the Internet and made a judgment in court.

In addition, there are judicial interpretations such as the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Infringement of Citizens' Personal Information, and the Judicial Interpretation of the Supreme Court on the Trial of Civil Cases Related to the Processing of Personal Information by Face Recognition Technology. Information protection issues. Generally speaking, under the guidance of the Civil Code, China has basically formed a relatively complete and perfect legal system for the protection of personal information. I believe that with the formulation of supporting laws, rules, local regulations, normative documents and standards for the protection of consumers' rights and interests, the coordination and linkage of regulatory agencies, judicial administrative organs and consumer organizations, and the coordinated use of scientific and technological means, consumers' personal information rights can be favorably protected.

The positive impact and guidance of the Civil Code on the protection of consumers' rights and interests is far more than the above, but also includes the rules for the establishment and performance of online shopping contracts, the validity of appointment contracts, the rules for buying and selling during the probationary period, the application of compensation for mental damage in the case of breach of contract, the filing of public interest litigation, the performance of corporate social responsibility, and so on.

In general, the Civil Code, as an encyclopedia of social life, has played an important leading and guiding role in the consumer rights protection system with the Consumer Rights Protection Law as the core. In the legislative system, it has formed A normative system from "Basic Law" to "Special Law" to "Supporting Provisions. This will certainly play an important practical significance for operators to strictly abide by the law, administrative organs to strictly enforce the law, judicial organs to adjudicate in accordance with the law, and earnestly safeguard the rights and interests of consumers.