On May 9, the consumer civil public interest litigation case filed by Henan Consumer Association (hereinafter referred to as "Henan Consumer Association") on the "Simba live instant bird's nest" incident officially opened, and Zhengzhou intermediate people's Court (hereinafter referred to as "Zhengzhou intermediate court") organized the trial online. The Henan consumers' Association filed a lawsuit that Kwai, Simba and other parties jointly undertake the responsibility of "one refund and three compensation", refund the total sales price of the bird's nest involved in the case of RMB 1992.9 million, and impose a punitive compensation of three times the total sales price. The total amount of refunded compensation was nearly 80million yuan, and the Simba Kwai account number was permanently closed.
With the help of the first case of public interest litigation with live goods, we may partially clarify the behavior boundary, rights and responsibilities of the relevant subjects of this emerging business format.
(edited by fan Rui and Zhu Ying)
On May 11, the relevant person in charge of Henan Consumer Association declined the interview with e-Law of Finance and economics. The relevant person in charge of Simba team introduced the main dispute focus in the trial.
Specifically include: whether Henan consumer association can put forward the lawsuit claim of "refund one compensation three"; Whether the company involved should jointly bear the responsibility of "one refund and three compensation", and if necessary, how to calculate the amount of refund and compensation that should be borne by all parties; Whether there is a legal basis for permanently shutting down Simba and its companies' live studio accounts; Whether Henan Consumer Association has performed its public welfare duties before litigation.
As a new form of e-commerce rising in recent years, the introduction, display and publicity of products brought by live broadcasting have broken through the regulatory scope of laws and regulations such as advertising law. At present, a series of laws and regulations have been issued, including the code of conduct for webcast marketing, the measures for the supervision and administration of online transactions and the measures for the administration of webcast marketing (for Trial Implementation). The regulatory authorities have also launched special rectification actions to make it clear that "the problem of illegal and illegal profits shall be strictly dealt with", including the false publicity of marketing goods.
In the view of the partners, Ma xiangdai needs to have a complete legal system and relevant regulations in practice. She pointed out that a remarkable feature of digital economic governance is multiple collaborative governance. Therefore, consumer organizations, industry associations and other institutions should play an important role in the supervision and governance of live broadcasting and goods.
Therefore, the lawsuit initiated by Henan Consumer Association is known as the first public interest litigation case of live delivery of goods. All parties believe that this case is of great significance to the normative development of this emerging industry.
01
The whole story of "false bird's nest incident"
At the end of October 2020, consumers pointed out that the bird's nest sold by Simba's anchor "Shida Meili" in the live studio was actually sugar water. On November 27 of the same year, Simba issued a letter of apology, saying that when the involved "Mingzhi" bird's nest products were promoted and sold in the live broadcasting room, "there was indeed exaggerated publicity, and the ingredient of bird's nest was less than 2G per bowl". Simba put forward the "first compensation scheme", recalled all the "Mingzhi" brand bird's nest products sold in Xinxuan live studio, and promised to refund one for three.
On December 23 of the same year, the Guangzhou municipal market supervision bureau reported the investigation and handling situation and planned to impose an administrative penalty of ordering Guangzhou Heyi e-commerce Co., Ltd. (hereinafter referred to as "Guangzhou Heyi"), the founder of the live broadcasting room involved, to stop the illegal act and impose a fine of 900000 yuan. Guangzhou Rongyu Trading Co., Ltd., the main seller of goods involved in the case, was ordered to stop the illegal act and fined 2 million yuan.
On the same day, the official microblog of Kwai e-commerce also announced that after the incident, the brand's bird's nest products were taken off the shelves of Kwai e-commerce in the whole station, and the e-commerce function of "Shida Meili" account was banned for 14 days; Xin Youzhi (Simba), the person in charge of Heyi in Guangzhou to which the anchor belongs, was required to properly deal with the after-sales problems and cooperate with the investigation of relevant departments. The live broadcast of Xin Youzhi's personal account was suspended from November 17.
The announcement also said that according to the investigation and handling by the Guangzhou municipal market supervision bureau, Kwai e-commerce decided to take further measures: from now on, the account of "Shida Meili" will be closed for 60 days; Close Xin Youzhi's personal account for 60 days. In addition, the accounts of 27 e-commerce anchors of Guangzhou Heyi and its affiliated companies were closed for 15 days, and the company was required to organize their e-commerce anchors for relevant training and learning.
However, the incident did not end here. In August, 2021, Henan consumers' Association filed a civil public interest lawsuit against Kwai company, Simba and related companies, requiring them to jointly bear the liability of "one refund and three compensation" and joint and several liability, with a total amount of 79.714156 million yuan.
In January 2022, after the lawsuit was disclosed, Xinxuan group announced that after the "bird's nest incident", it had put forward an advance compensation scheme on November 27, 2020, that is, recalling the products of the live broadcasting room and promising to refund one for three. As of January 14, 2022, the company has paid a total of 41.439 million yuan to consumers, and the compensation scheme is still valid.
02
Does the consumer association have the right to file public interest litigation
Henan Consumer Association said in the indictment that at the end of December 2020, Henan Consumer Association successively received consumer complaints and complaints. The bird's nest purchased in Simba live studio had problems and was suspected of cheating consumers. After investigation and verification, it is determined that it infringes on many unspecified consumers (including 2124 transaction notes in Henan Province, with a total transaction amount of 601000 yuan). Henan Consumer Association believes 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.
According to the interpretation of the Supreme People's Court on Several Issues concerning the application of law in the trial of consumer civil public interest litigation cases (revised in 2020) (hereinafter referred to as the interpretation of consumer civil public interest litigation), which came into force on January 1, 2021, the conduct of the defendant in filing consumer civil public interest litigation infringes the legitimate rights and interests of many unspecified consumers, or has the potential to endanger the personal Proof materials of preliminary evidence of damage to social and public interests such as property safety risk. For the trial of such cases, the court needs to first review the relevant supporting materials submitted by the local consumer association.
According to the previous public information, Simba took the initiative to announce the first Refund Scheme of "one refund and three compensation" on November 27, 2020. Simba said that as of the date of the trial, all consumers who can be contacted by Guangzhou Heyi and meet the refund conditions have been compensated.
Then, the Henan Consumer Association submitted a civil complaint to the Henan intermediate people's court in August 2021. When Simba has taken the initiative to pay compensation, does Henan consumer association still have the right to file a public interest lawsuit?
Ma Xiangxiang introduced that the consumer civil public interest litigation can be initiated by the China Consumer Association or the provincial consumer association to bring a lawsuit against the operator's infringement of the legitimate rights and interests of many unspecified consumers, or the risk of endangering the personal and property safety of consumers and other acts damaging the social and public interests.
Ma Xiangxiang believes that although Guangzhou Heyi claims that the consumers who can be contacted and meet the refund conditions have been compensated, because they are live sales, they have a wide audience, and there may be consumers who can not be contacted but meet the refund conditions, which constitutes a situation of "unspecified consumers", so Henan consumer association can file a public interest lawsuit.
However, a person from the procuratorial system who did not want to be named believes that there is a certain division of jurisdiction in public interest litigation. Henan consumer association usually can only file a lawsuit on behalf of consumers in Henan Province. In theory, it can not file a public interest litigation on behalf of injured consumers in the country, unless appointed by the National Consumer Association. This person has undertaken many public interest litigation cases in the Internet field.
03
Can the Consumer Association ask for "one retreat and three companionship"
Ma Xiangxiang said that according to the law on the protection of consumers' rights and interests, if a business operator commits fraud in providing goods or services, it shall increase the compensation for the losses it has suffered according to the requirements of consumers, and the amount of increased compensation shall be three times the price consumers pay for buying goods or receiving services; At the same time, according to the food safety law, if the operator knows that the food does not meet the food safety standards, the consumer can not only claim compensation for the loss, but also ask the operator to pay compensation ten times the price or three times the loss.
Ma Xiangxiang pointed out that although there is a debate on whether the consumer association is the qualified subject of punitive damages. However, in specific judicial practice, when applying the circumstances under relevant laws (such as the fraud described in the consumer protection law), most courts will support punitive damages.
On August 17, 2021, the Guangzhou Municipal People's Procuratorate submitted an indictment of civil public interest litigation to the Guangzhou intermediate people's court. Taking a frozen food company in Guangzhou and Lin as the defendants, it filed a consumer civil public interest litigation, claiming compensation for ten times the price of selling food that did not meet the safety standards and making an apology. Later, the public interest litigant and the defendant reached a mediation agreement on compensation, which was performed in three phases.
Wang Weiwei, a partner of Zhongwen law firm, said that the lawsuit request of "one refund and three compensation" filed by Henan Consumer Association is based. This is the responsibility of consumer civil public interest litigation entrusted by the consumer rights and interests protection law, which can warn illegal and dishonest operators and force operators to establish a sense of honesty and law-abiding.
04
How should multi parties divide responsibilities
The indictment of Henan Consumer Association said that the products involved were sold in the form of live broadcast with goods, and the business subjects were diverse. In this case, the four defendants, Beijing Kwai Technology Co., Ltd. (hereinafter referred to as "Kwai"), Guangzhou Heyi, Guangzhou Rongyu Trading Co., Ltd. (hereinafter referred to as "Guangzhou Rongyu"), and Dazhou Xinyan (Xiamen) Biotechnology Co., Ltd., jointly constituted the operator complex. Among them, Kwai, as an online trading platform, and Guangzhou Heyi, as a live broadcast marketing platform, jointly implemented the live broadcast with goods sales with Guangzhou Rongyu, and both obtained economic benefits directly linked to sales. They are the de facto sellers of the case.
The indictment also claims that Xin Youzhi, as the head anchor and online celebrity of the Kwai platform, has a large number of fans and great influence. He is also the actual controller of Guangzhou Heyi. In fact, he also participated in the live broadcast and goods sales of the case and should bear the corresponding joint and several liability for compensation. Zhejiang tmall Network Co., Ltd. is the online trading platform of Guangzhou Rongyu. It fails to fulfill the platform management responsibility and should bear the corresponding joint and several liabilities.
Simba argued that Simba did not carry out the live broadcasting of Mingzhi bird's nest products in the live broadcasting room, and had no intention to infringe on the legitimate rights and interests of consumers with Guangzhou Heyi. Henan Consumer Association claimed that Simba should be jointly and severally liable for the refund of Guangzhou Rongyu, which has no factual basis.
Simba's reply also pointed out that in the "decision on administrative punishment" made by the market supervision bureau of Baiyun District, Guangzhou, it has also been determined that Guangzhou Heyi and the anchor "Shida Meili" had no subjective intention in the process of live broadcasting and promoting Mingzhi bird's nest products, which was misled by Guangzhou Rongyu.
The previous punishment decision found that in the process of live delivery, the anchor only relied on the "selling point card" and other contents provided by the seller, coupled with his personal understanding of the goods, that is, the live promotion of the goods, emphasized that the bird's nest content of the goods was sufficient and the effect was good, and did not mention that the real attribute of the goods was flavor drinks. There was misleading commercial publicity, which violated the relevant provisions of the anti unfair competition law.
How should different platforms take responsibility? The above insiders of the procuratorial system said that it depends on the contracts between several parties and determine the proportion of responsibility according to different legal relations.
Wang Weiwei said, "the specific amount of compensation needs to be clarified through the proof of both parties in the litigation process. The probability of the final amount cannot be so high." He pointed out that the regulatory responsibility of the Kwai platform should mainly consider whether it has fulfilled the prudent regulatory responsibility for the live broadcast carrier's selling of fake goods, whether it has taken reasonable and effective measures to stop the selling of fake goods in a timely manner, etc. all these need to wait for the court session, and the platform, as the defendant, can understand the details and judge whether the platform should bear joint and several liability.
05
Should Simba account be closed
In the petition, the Henan consumers' Association requested that Kwai permanently block the live broadcast accounts opened by Simba and Guangzhou Heyi.
Simba argued that the permanent closure of the live studio account is not a way of 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.
Ma Xiangxiang pointed out that according to the interpretation of consumer civil public interest litigation, the court can support the plaintiff's request to the defendant to bear civil liabilities such as stopping infringement, removing obstruction, eliminating danger and making an apology in consumer civil public interest litigation cases. In terms of live broadcasting e-commerce, the closure of live broadcasting room accounts can be regarded as an effective way to "stop infringement".
She believes that whether the closure of Simba live studio accounts can be supported by the court needs to be understood from the perspective of exhaustive compensation stop loss, measure the actual role of the closure of accounts in eliminating damage, and finally make a comprehensive judgment.
The above-mentioned people of the procuratorial system who did not want to be named believed that this appeal of Henan consumer association was "debatable and lacked a clear legal basis".
In Wang Weiwei's view, the requirement to permanently ban Simba accounts is more symbolic. First, there is a relative lack of legal and regulatory basis; Second, Simba has accepted the ban punishment, and there is no reason to punish again based on the principle of "no two penalties for one thing"; Third, after the "fake bird's nest incident", the punishment received by Simba team has achieved good social education effect, and it is not necessary to impose permanent suspension and other penalties.
06
Does the Consumer Association fulfill its duties
As for whether Henan Consumer Association has performed its public welfare duties before litigation. Simba said that according to Article 4 of the interpretation of consumer civil public interest litigation, Henan consumer association should file a consumer civil public interest litigation only after it has fulfilled its corresponding public interest responsibilities for the events involved in the case and can not make the majority of consumers get due relief. However, in this case, Henan Consumer Association failed to investigate and verify who had sold Mingzhi bird's nest products, which injured consumers and which injured consumers had not been compensated after online public opinion. Especially when Guangzhou Heyi asked Henan Consumer Association to provide a list of unpaid compensation, Henan Consumer Association has been unable to provide it so far, so it filed a lawsuit, which is contrary to the public interest litigation requirements before investigation, It violates the legislative purpose of consumer public interest litigation.
According to the interpretation of consumer civil public interest litigation, consumer organizations shall submit supporting materials for performing public welfare duties in accordance with the law when filing consumer civil public interest litigation, Specifically, it is stipulated in Item 4 of Article 37 of the consumer rights and interests protection law (that is, report, inquire and make suggestions to relevant departments on issues related to the legitimate rights and interests of consumers) or item 5 (that is, accept consumers' complaints and investigate and mediate the complaints).
Ma Xiangxiang pointed out that the pre procedure for the trial of consumer civil public interest litigation cases is that consumer organizations have fulfilled the relevant public welfare responsibilities stipulated in the consumer rights and interests protection law, "it can be presumed that Henan consumer association should submit the supporting materials for the performance of public welfare responsibilities to the court".
She further explained that after receiving complaints from consumers, consumer organizations should take active measures to resolve disputes and problems and safeguard consumers' rights and interests. If the consumer organization has fulfilled the corresponding public welfare responsibilities for the matters involved in the lawsuit, and can not make the majority of consumers get the due relief, it can file the corresponding consumer civil public welfare litigation. Its purpose is to make rational use of judicial resources and protect the legitimate rights and interests of consumers to the greatest extent.
At the trial, all parties expressed their willingness to mediate under the auspices of the court. When replying to the form of financial e law for mediation, Simba said, "regardless of the judgment result of this case, the advance compensation scheme made by Xinxuan group is still valid for a long time. As long as consumers meet the conditions for refund, Xinxuan group will be responsible to the end".