The Simba bird's nest incident entered the court after fermentation, and nearly 80 million yuan of punitive damages became the focus of the court trial. On May 9, the consumer public welfare civil lawsuit initiated by Henan Consumer Association on the "Simba bird's nest incident" was heard in Zhengzhou intermediate people's court.
The disputes between the prosecution and the defense in this court session mainly focused on whether this lawsuit affects the ongoing restitution procedure, whether the permanent prohibition of Simba account is reasonable, and whether this case meets the conditions of civil public interest litigation.
In the online trial, the prosecution and the defense read out the indictment and reply respectively in the court, and expressed cross examination opinions on the evidence they submitted. At the end of the trial, the parties expressed their willingness to mediate under the auspices of the court.
Whether there are "unspecified consumer groups" has become the focus, and Henan Consumer Association has been accused of failing to perform its duties
In this case, Henan consumers' Association sued Xin Youzhi (Simba) and his holding company Guangzhou Heyi e-commerce Co., Ltd., "Tangshui bird's nest" actual seller Guangzhou Rongyu Trade Co., Ltd., producer Dazhou Xinyan (Xiamen) Biotechnology Co., Ltd., Beijing Kwai Technology Co., Ltd. and Zhejiang tmall Network Co., Ltd.
Henan Consumer Association said in the indictment that this incident infringed on the legitimate rights and interests of many unspecified consumers, caused serious damage to social and public interests, and met the legal conditions for filing consumer civil public interest litigation.
The defendant Zhejiang tmall.com Co., Ltd. said in its reply that the consumers in this case were specific consumers who jumped to the tmall platform to purchase the goods involved through the live link of "Shida Meili" Kwai, the anchor of Heyi company. After the goods involved were removed from the shelves, the consumer group had been fixed, not unspecified. This case belongs to a specific situation with many consumers, which does not meet the formal requirements of public interest litigation.
The lawyer representing tmall said that if Henan Consumer Association wants to sue on behalf of consumers who have not completed the refund, it must at least accept the complaints of consumers, investigate and mediate the complaints, and file public interest litigation after accepting the refund complaints of batch consumers and collecting the corresponding contact and refund methods in accordance with the relevant provisions of the interpretation of the Supreme People's Court on several issues of applicable law in the trial of consumer civil public interest litigation cases, In this case, no such evidence materials were submitted by Henan Consumer Association.
"After the occurrence of this case, all parties involved in the case have attached great importance to it and taken corresponding necessary measures. So far, Simba has refunded more than 40 million yuan of compensation to consumers, which means that most consumers have been compensated. At the same time, taking Rongyu company as the key word, we can see that some consumers have filed corresponding consumer lawsuits, but they all ended up with withdrawal of the lawsuit, which also shows that consumers have been compensated Other channels have obtained the protection of rights and interests, and there is no need to obtain compensation through litigation. " The aforementioned lawyer representing tmall said that under such circumstances, Henan consumer association still took the total sales of goods involved since September 17, 2020 as the disputed amount of this case, which is a denial of the compensation efforts of all subjects in the early stage.
Simba's lawyer also said in his reply that according to the relevant judicial interpretation, Henan consumer association should file a consumer civil public interest litigation only after it has performed its corresponding public welfare responsibilities for the events involved in the case and can not make the majority of consumers get due relief. However, in this case, the Henan Consumer Association only took the report of a professional crackdown on counterfeit goods as the clue, and did not investigate and verify which injured consumers had not received compensation to file a lawsuit, which violated the principle of leading the investigation.
The lawyer also revealed that they had communicated with Henan Consumer Association for many times and hoped that Henan Consumer Association would provide a list of consumers who purchased "Mingzhi bird's nest" products through the link of "Shida Meili" live studio and failed to obtain the first refund, especially the list of consumers in Henan Province, so as to refund the compensation first. However, as of the day of the hearing, Henan Consumer Association has failed to provide the relevant list.
For the question raised by the defendant whether Henan Consumer Association has performed its corresponding duties before the public interest litigation, the collegial panel said that this issue will be involved in the trial, but it will not be the focus of the dispute between the two parties.
Henan Consumer Association filed a lawsuit to permanently ban the account, and the defendant said there was no legal basis
The most controversial focus of this case is that Henan consumers' Association requested the court to order Beijing Kwai Technology Co., Ltd. to permanently shut down the live room accounts opened by Xin Youzhi and Guangzhou Heyi e-commerce Co., Ltd.
The lawyers representing the defendants believed that Kwai had taken measures to suspend the live broadcast and seal Simba for 60 days due to the commodities involved in the case, and the addition of "permanent suspension" lacked legal basis. China's current law does not stipulate that once the individual account registered on the online trading platform infringes upon the rights and interests of consumers by using the platform, the platform account can not be used forever. Therefore, there is no basis for adding permanent titles when "Shida Meili" and Simba have been punished for a period of time, and there are no other violations of consumers' rights and interests.
In addition, Article 179 of the Civil Code stipulates 11 ways of bearing civil liability, such as stopping infringement and excluding obstruction. The permanent title does not belong to any of the above ways of bearing civil liability, and the request of Henan Consumer Association also lacks legal basis. Therefore, it is hoped that the court will reject the relevant litigation claims of Henan Consumer Association.
The lawyer acting for Henan Consumer Association asked in court why Xin Youzhi (Simba) would come forward to respond to the question afterwards? Simba replied that there are many real name anchors under Guangdong Heyi company, and not every anchor will broadcast every day. It is not inappropriate for Simba to explain relevant problems to consumers.
Simba's lawyer believes that the permanent closure of the live studio account is not a way to bear civil liability clearly stipulated by the law, but a management measure that the platform operator may take to maintain the order of the platform. When the business behavior of platform operators complies with laws and regulations, the judiciary should not interfere with their freedom of operation.
Surging news noted that the Henan consumers' Association also mentioned in the indictment that Kwai and tmall platform failed to fulfill their obligations to review the goods and should bear joint and several liabilities. The lawyers representing Kwai and tmall said that they had fulfilled their relevant obligations under the law. After the bird's nest incident, they banned the relevant accounts and removed the relevant goods from the shelves.
Triple punitive damages lead to disputes, and all parties say they are willing to mediate
In response to the request of "one refund and three compensation" of 79714156 yuan in the indictment of Henan Consumer Association, Xin Youzhi and Guangzhou Heyi company said in their reply that the litigation request of Henan Consumer Association has no factual and legal basis, and begged the court to find out the facts of the case objectively and fairly according to law and reject all the litigation requests put forward by Henan Consumer Association.
Surging news noted that Guangzhou Rongyu Trading Co., Ltd., another defendant in this case and the actual seller of "Tangshui bird's nest", had previously had its business license revoked and was absent from this trial.
"The injured consumer was abandoned by the brand party Guangzhou Rongyu company. The respondent and the company controlled by the respondent were the first to stand up and promise to pay in advance, and took the responsibility of 'refund one and compensate three' in advance with practical actions. Instead, they became the defendant." Zimbabwe's lawyer said.
Zimbabwean side believes that the case is that Guangzhou Rongyu company cheated consumers and should bear the legal responsibility of "one refund and three compensation". Guangzhou Heyi company has no intention of cheating consumers and should not jointly bear the legal responsibility of "one refund and three compensation".
For the advance payment commitment of "one refund and three compensation", Zimbabwe believes that this is a voluntary act responsible to consumers, not legal liability, and has actually refunded 41511240 yuan. "It is a contractual dispute that Guangzhou Heyi company recovers the compensation from Guangzhou Rongyu company according to the brand promotion cooperation agreement after returning the compensation in advance. It cannot be deemed that Guangzhou Heyi company should bear the compensation responsibility because Guangzhou Heyi company voluntarily performs the compensation responsibility in advance." Zimbabwe's lawyer said.
"The subject of the claim for damages and punitive damages in the field of consumer rights and interests protection is consumers. The nature of the rights belongs to the private interests of consumers, not the public interests in the field of consumption." In its reply, Guangzhou Heyi company said that although the law on the protection of consumers' rights and interests stipulates that consumers' associations can file a lawsuit against acts infringing the legitimate rights and interests of many consumers according to law, it does not specify the specific claim type of public interest litigation filed by consumers' associations, let alone clearly stipulate that consumers' associations can file public interest litigation and claim price losses and punitive damages belonging to consumers, That is, it is not clearly stipulated that public interest litigation can claim private interests. What's more, the compensation has been paid in advance according to the standard of "one refund and three compensation". Therefore, Henan Consumer Association advocates a refund of nearly 80 million yuan, which is lack of legal basis.
At the end of the trial, the parties expressed their willingness to mediate under the auspices of the court.