Law enforcement agencies should actively respond to the new changes in ＂professional counterfeiting＂

Since the promulgation and implementation of the Consumer Protection Law in 1993, the phenomenon of "professional counterfeiting" has appeared for nearly 20 years. During this period, with the rapid development of China’s economy and the continuous improvement of the legal system, "professional counterfeiting" has also undergone a series of changes: from a single-player approach to a team-based counterfeiting model with rich experience, and even a special "professional counterfeiting" company has emerged, forming an industry. The income of "professional counterfeiting" has also risen from several hundred yuan per claim to tens of thousands or even hundreds of thousands of yuan.

The claim mode of "professional counterfeiting" is relatively fixed: professional counterfeiters first complain and report to the relevant law enforcement agencies after purchasing the problematic goods. After the law enforcement agencies punish the merchants, professional counterfeiters use the results to negotiate compensation with the merchants or file a civil lawsuit for compensation. However, if the processing result made by the law enforcement agency is not conducive to the claim, the professional counterfeiter will file an administrative lawsuit with the law enforcement agency as the defendant, requesting to change or cancel the processing result. In recent years, such cases of "professional counterfeiting" have flooded into administrative law enforcement, civil and administrative litigation all over the country, which has caused administrative law enforcement organs and judicial organs to become "tools" for professional counterfeiters to make profits to some extent.

In the past 20 years, the development of "professional counterfeiting" has always been accompanied by great controversy. Not only the public has different opinions about "professional counterfeiting", but also the administrative law enforcement organs and judicial organs all over the country have different understandings about whether the identity of professional counterfeiters belongs to consumers. In March 2014, the Provisions on Several Issues Concerning the Application of Laws in the Trial of Food and Drug Disputes formulated by the Supreme People’s Court began to be implemented, which unified the judicial standards nationwide for the first time, and the consumer identity of "professional counterfeiters" was affirmed to some extent. Some professional counterfeiters also believe that the spring of "professional counterfeiting" has finally arrived.

In this context, "professional counterfeiting" will be more active, which will have a greater impact on relevant law enforcement agencies, such as business administration, quality supervision, food and drug supervision and other departments closely related to consumption. In view of the possible development and changes of "professional counterfeiting" activities, relevant law enforcement agencies should actively respond and deal with "professional counterfeiting" cases from the following aspects:

One is to change ideas. The administrative organ shall recognize the consumer identity of professional counterfeiters, and handle their consumer complaints and reports in a timely and lawful manner. Although "professional counterfeiting" makes administrative law enforcement a profitable tool, objectively increases the workload of law enforcement agencies, increases the difficulty of law enforcement work, and even leads law enforcement agencies to be sued in court, law enforcement agencies cannot be resistant to "professional counterfeiting" and easily think that professional counterfeiters are "unruly people". Law enforcement agencies should recognize the positive significance of "professional counterfeiting". On the one hand, "professional counterfeiting" urges businesses to abide by the law and improve the market order. The existence of "professional counterfeiting" itself shows that the relevant administrative law enforcement agencies have blind spots in law enforcement and the market is not standardized. On the other hand, "professional counterfeiting" can urge administrative organs to administer according to law, standardize administrative organs’ law enforcement behavior, and make administrative organs understand relevant laws and regulations more accurately. In practice, the problems involved in "professional counterfeiting" are often professional, and some professional counterfeiters often make a lot of preparations in advance for the relevant legal provisions involved in their complaints, so their understanding of relevant professional legal provisions is even stronger than that of some law enforcement officers. Such cases will promote law enforcement personnel to learn and understand the relevant laws and regulations.

The second is to clarify the division of powers. At present, the law enforcement agencies related to "professional counterfeiting" mainly include three departments: industrial and commercial management, quality supervision and food and drug supervision. "Professional anti-counterfeiting" aims at a wide range of problems, including not only the quality problems in commodity production and sales, but also the problems in commodity advertising and packaging labeling. Relevant government departments should clearly distinguish the law enforcement subjects of each kind of problems, so as to avoid mutual prevarication or repeated management. In addition, relevant government departments should also pay attention to the issue of regional jurisdiction. For example, "professional counterfeiting" is aimed at the quality of goods in the sales link, and the sellers and producers of goods are not in the same region. In this case, whether the law enforcement agency where the commodity seller is located has the right to handle the report and directly determine whether the commodity has quality problems. If the law enforcement agency has no right to directly determine whether the goods have quality problems, how should it supervise and examine the responsibilities of the commodity sellers? Such problems need to be further clarified and unified by relevant government departments.

The third is to pay attention to law enforcement norms. In response to the report of professional counterfeiters, law enforcement agencies should first clearly report the illegal acts targeted to avoid irrelevant answers. For example, the price administrative department received a report on price violations, which not only mentioned the price-setting behavior of merchants, but also mentioned their own purchase behavior. In this regard, the price administrative department should make it clear whether the report is aimed at the price-fixing behavior of the merchants or the price-fixing behavior of the merchants. Secondly, law enforcement agencies should accurately apply legal provisions. The problems involved in "professional counterfeiting" often involve a number of relevant legal provisions, and law enforcement agencies should choose the most accurate legal provisions. For example, if the content of the report is that a merchant used a false quality certification mark in an advertisement, it is suspected of violating both the relevant provisions of false propaganda in the Advertising Law and the relevant provisions of the Product Quality Law prohibiting the fraudulent use of quality certification marks. In this case, the law enforcement agency chooses the applicable legal provisions based on the principle that "special law is superior to general law". Finally, law enforcement agencies should also pay attention to the collection and preservation of evidence in law enforcement work to avoid the consequences of losing the case in administrative litigation due to insufficient evidence.

The fourth is to update the normative documents in time. The normative documents formulated by many law enforcement agencies for the specific operation of law enforcement failed to be revised according to the development and change of the national economy or the specific situation of the implementation of legal norms. For example, law enforcement agencies have formulated corresponding operational norms for the sale of goods in traditional supermarkets and department stores. However, when dealing with the reports on emerging e-commerce and TV shopping, the relevant contents in such normative documents are not operable. For another example, a law enforcement agency has formulated incentives for reporting certain types of illegal acts. With the development and change of social economy, the public’s literal understanding of one of the reward conditions is ambiguous. If the law enforcement agency does not modify the reward method in time, it will lead to the public not being rewarded after reporting, thus damaging the credibility of government agencies.

(The author is a judge of Shijingshan District People’s Court in Beijing)