Regulation of private rights mode to crack down on counterfeiting requires "shifting" rather than turning

Occupational anti-counterfeiting is accompanied by the emergence of the punitive compensation system, and the dispute over it has never stopped since its birth

Professional anti-counterfeiting moves towards more refinement

According to incomplete statistics, from 2011 to 2021, there were about 16,925 civil dispute cases involving occupational anti-counterfeiting

"Currently, the distribution of occupational anti-counterfeiting across the country shows obvious characteristics, that is, the differences in local laws and regulations lead to differences in areas where occupational anti-counterfeiting cases are frequent

Article 36 of the "Regulations on the Protection of Consumer Rights and Interests in Shanghai" formulated by Shanghai, which is also an economically developed region, adopts a general legislative method, which makes consumers bear more burden of proof on whether the operator "constitutes a fraudulent act".

Zeng Wenyuan added that judging from the data of the first-instance judgments of cases across the country, the trial results of cases involving "professional anti-counterfeiting" "partially or fully supported" the plaintiff's (i.

From the data of the food industry, from January 1, 2017 to December 31, 2021, there were a total of 18,167 cases involving infringement disputes across the country

"In addition, professional anti-counterfeiting has also emerged as a group and mutual agency to reduce the negative impact in court trials.

Identify occupational anti-counterfeiting from two aspects of identity limitation and behavior limitation

As for how to deal with the behavior of knowingly buying fakes and whether they have consumer identity, the above-mentioned issues are still controversial because relevant laws and regulations have not made clear provisions

In judicial practice, for professional anti-counterfeiting acts of profit-making, it is determined whether punitive compensation can be obtained from the two dimensions of identity limitation and behavioral limitation, that is, professional anti-counterfeiting only has the meaning of identity marking, and the Supreme People's Court intends to regulate It is its profit-making anti-counterfeiting behavior

In the specific identification of identity, the first is to determine the amount of litigation in similar cases

The second is a large number of repeated purchases

The third is the way of fixing the evidence

"In addition, there is another way to determine whether there is a legitimate occupation, which is more complicated

　　In the specific identification of behavior, it is mainly determined from whether there is a profit-making anti-counterfeiting behavior

Professional anti-counterfeiting should regulate the super mode

　　Zeng Wenyuan introduced that professional anti-counterfeiters have also taken various measures to deal with judicial determinations in various places

　　"Occupational anti-counterfeiting is actually a private right as the dominant mode of occupational anti-counterfeiting, and there are mainly three modes

　　"Whether strengthening market supervision or enhancing industry self-discipline, etc.
, cannot completely solve the problem of counterfeit and shoddy commodities in China
.
Only relying on market inspection and law enforcement forces cannot guarantee the safety on the tip of the tongue
.
" Zeng Wenyuan believes that the current occupational crackdown is still to solve the problem of counterfeit and shoddy commodities.
, An effective private rights model for food safety, what we need to do is not to turn, but to "shift", that is, a super model that regulates some negative effects, and to the direction that can play the role of private rights in governance, negative effects and controllable Mild mode to convert
.

(Yuan Guofeng)

"China Food News" (August 23, 2022 03 edition)

　　(Editor-in-charge: Yuan Guofeng)