Avocat ˆ la Cour dÕAppel de Paris
Barrister and Solicitor Nova Scotia Canada
Of counsel to Kunlun Law Firm Beijing
29 boulevard Raspail 75007 Paris France
Tel: 0145046252 Fax:0145446445/0142228016
www.lapres.net daniel@lapres.net
Law on Protecting Consumers' Rights and Interests
Adopted by the fourth meeting of
the eighth National People's Congress Standing Committee on 31st October 1993
Article 1
This law has been formulated to protect
the legitimate rights and interests of consumers, maintain socioeconomic order
and promote the healthy development of the socialist market economy.
Article 2
The rights and interests of consumers
who buy or use commodities for purposes of daily consumption or those who
receive services are protected by this law. In the absence of relevant
provisions in this law, their rights and interests are protected by other laws
and regulations governing related matters.
Article 3
Producers shall abide by this law when
supplying consumers with the commodities they produce or market or when
providing services. In the absence of relevant provisions, they shall abide by
other laws and regulations governing related matters.
Article 4
When conducting transactions, producers
and consumers shall follow the principles of voluntariness, equality, fairness,
honesty and credibility.
Article 5
The state shall protect the legitimate
rights and interests of consumers to ensure that they will not be violated.
The state shall take measures to ensure
that consumers will exercise their rights in accordance with the law and to
protect their legitimate rights and interests.
Article 6
It is the common responsibility of all
strata of society to protect the legitimate rights and interests of consumers.
The state shall encourage all
organizations and individuals to exercise public supervision over actions that
hurt the legitimate rights and interests of consumers and shall assist them in
this regard.
The mass media shall publicize the need
to protect the legitimate rights and interests of consumers and shall enlist
public opinion in overseeing actions that hurt such rights and interests.
Article 7
In buying or using commodities or in
receiving services, consumers are entitled to personal safety and safety with
regard to their property.
With respect to commodities and services
provided by the producers, consumers are entitled to raise demands to ensure
their personal safety and the safety of their property.
Article 8
Consumers are entitled to receive
correct information on the commodities they buy or use or on the services they
receive.
Consumers are entitled to request
producers to supply relevant information as required by different commodities
and services. Such information includes commodity prices, manufacturing places,
manufacturers, intended uses, functions, specifications, product grades, major
components or ingredients, manufacturing dates, expiration dates, inspection
certificates, instructions for operation or application, after-sales services
and service items, details and charges.
Article 9
Consumers are entitled to choose their
own commodities or services.
Consumers are entitled to choose their
own producers for the supply of commodities or services, as well as their
preferred commodity types or service methods. They can decide independently
whether to buy a certain commodity or to receive a certain type of service.
In choosing their preferred commodities
or services, consumers are entitled to draw comparisons and distinctions or to
exercise their options.
Article 10
Consumers enjoy the right of fair trade.
In purchasing commodities or receiving
service, consumers have the right to quality assurance, reasonable prices and
accurate measurements and other terms of fair trade, as well as the right to
reject business operators' coercive trade behavior.
Article 11
Consumers enjoy the right to receive
compensation in accordance with the law for personal and property damages
incurred as a result of the purchase and use of commodities or receipt of
service .
Article 12
Consumers enjoy the right to form social
groups in accordance with the law to safeguard their legitimate rights and
interests.
Article 13
Consumers enjoy the right to obtain
knowledge related to consumption and to the protection of their rights and
interests.
Consumers shall make an effort to grasp
knowledge about the commodities and service they want and to acquire the skills
necessary for using them; they shall correctly use commodities and raise their
own awareness to protect themselves.
Article 14
In purchasing and using commodities and
receiving service, consumers enjoy the right to demand respect of their personal
dignity and national customs and habits.
Article 15
Consumers enjoy the right to exercise
supervision over commodities and service, and over the work of protecting their
rights and interests.
Consumers have the right to report and
file charges over behavior infringing their legitimate rights and interests and
over violations of law or derelictions of duty on the part of state bodies and
their functionaries in the course of protecting consumer rights and interests;
consumers have the right to criticize and make suggestions on the work of
protecting their rights and interests.
Article 16
When providing commodities or service to
consumers, business operators shall fulfill their obligations in accordance
with the provisions of the "Law of the People's Republic of China on
Quality of Domestically Produced Products" and other relevant laws and
regulations.
Business operators shall fulfill their
obligations in accordance with the agreement, if any, reached with the consumers;
however, such bilateral agreements shall not contravene the provisions of laws
and regulations.
Article 17
Business operators shall listen to the
views of consumers on the commodities or service provided by them and shall
accept consumers' supervision.
Article 18
Business operators shall guarantee that
the commodities or service provided by them are in conformity with the personal
and property safety requirements. In case there is a possibility that their
commodities and service may be hazardous to personal and property safety, they
shall make truthful presentation and give clear warnings to consumers and shall
explain and label the method of using the commodities or accepting the service,
as well as the directions for preventing the occurrence of such hazards.
Upon discovering that the commodities or
service provided are seriously defective and that they may cause harm to
personal and property safety even under normal use of the commodities or
service, business operators shall forthwith report to the relevant
administrative departments and inform the consumer and they shall adopt
measures to prevent the occurrence of the harm.
Article 19
Business operators shall provide
truthful information related to commodities and service to consumers; they shall
not make misleading or false propaganda.
Business operators shall truthfully,
clearly respond to inquiries made by consumers regarding the quality of their
commodities or service and the method of use.
Shops shall clearly mark the prices of
their commodities.
Article 20
Business operators shall give their true
names and signs and mark them accordingly.
Business operators leasing others'
counters or space shall give their own true names and signs and mark them
accordingly.
Article 21
When providing commodities or service,
business operators shall issue receipts or service certificates to consumers in
accordance with the relevant state regulations or business practice; business
operators shall comply with consumers'request for receipts or service certificates.
Article 22
Business operators shall guarantee that,
under normal use, the commodities or service provided by them possess the
expected quality, capability and usefulness prior to the expiration date;
however, this provision does not apply to commodities or services whose defects
are known to consumers at the time of purchase or the commodities or receipt of
the service.
Business operators shall guarantee that
the actual quality of their commodities and services are compatible with what
they indicate in the advertisement, product literature, samples or other forms
of presentation.
Article 23
In selling their commodities or offering
services, after promising to undertake the commitment for repair, exchange and
refund in accordance with state regulations or an agreement with consumers, or
promising to undertake other responsibilities, business operators shall fulfil
the promise according to the state regulations or the agreement with consumers
and must not deliberately resort to procrastination or refuse to comply without
reasons.
Article 24
Business operators must not set unfair
and unreasonable regulations against consumers by the use of formal contract,
circular, statement, shop or store notice and other means, or try to alleviate
or avoid their civil responsibility they must bear for harming the legitimate
rights and interests of consumers by resorting to the above means.
Should formal contracts, circulars,
statements and shop or store notices carry contents mentioned in the previous
paragraph, the contents shall be null and void.
Article 25
Business operators must not insult and
slander consumers, must not search the body of consumers and the goods they
carry and must not infringe upon the personal freedom of consumers.
CHAPTER IV. State Protection of Consumers' Legitimate Rights and Interests
Article 26
The state shall listen to consumers'
opinions and demands when formulating laws, regulations and policies relating
to the legitimate rights and interests of consumers.
Article 27
The people's governments at all levels
shall strengthen leadership over the relevant administrative departments,
organize them, coordinate with them and urge them to do well their work of
protecting consumers' legitimate rights and interests.
The people's governments at all levels
shall strengthen supervision to prevent acts of harming the personal and
property safett of consumers and to promptly check such acts.
Article 28
The industry and commerce
administrations and other relevant administrative departments of the people's
governments at all levels shall adopt measures within the scope of their
authority in accordance with the provisions of laws and regulations to protect
consumers' legitimate rights and interests.
Relevant administrative departments
shall listen to the opinions of consumers and their oraganizations regarding
the business conduct of business operators and the quality of their commodities
and services, and prompty conduct investigations to handle the matter.
Article 29
In providing commodities and services,
if business operators commit the law-breaking and criminal act of harming
consumers' legitimate rights and interests, relevant state bodies shall punish
them according to the provisions of laws and regulations .
Article 30
The people's courts shall adopt measures
that will make it simple for consumers to file a lawsuit. Disputes over
consumers' rights and interests that meet the litigation conditions set by the
Civil Procedure Law of the People's Republic of China must be accepted and
promptly handled.
Article 31
Consumers' associations and other
consumers' organizations are social organizations formed according to law to
supervise commodities and services and protect consumers' legitimate rights and
interests.
Article 32
Consumers' associations exercise the
following functions:
(1) Providing consumers with consumer
information and consultation services;
(2) Assisting relevant administrative
departments in supervising and checking commodities and services;
(3) Information relevant administrative
departments of problems pertaining to consumers' legitimate rights and
interests, inquiring the departments and making suggestions to them about these
problems; (4) Accepting consumers'complaints and conducting investigations and
mediation in connection with the complaints;
(5) If the complaints involve the
quality of commodities and services, a verification department, when asked to
verify the quality, shall provide the verification conclusion;
(6) Supporting victimized consumers in
taking legal proceedings against acts of harming consumers' legitimate rights
and interests;
(7) Exposing and criticizing, through
mass media, acts of harming consumers' legitimate rights and interests;
People's governments at all levels shall
support consumers' associations in exercising their functions.
Article 33
Consumers' organizations are not
permitted to engage in business operations and provide profit-generating
services, nor are they allowed to recommend commodities and services to society
with the aim of making profits.
Article 34
In the event of disputes with producers
regarding their rights and interests, consumers may pursue the following
avenues in settling the disputes:
(1) Holding reconciliation talks with
the producers;
(2) Requesting consumers' associations
to help in mediation;
(3) Filing petitions with relevant
administrative departments;
(4) Applying to arbitration bodies for
arbitration proceedings pursuant to relevant agreements reached with the
producers; and
(5) Instituting legal proceedings in
people's courts.
Article 35
Consumers may demand compensation from
the sellers if their legitimate rights and interests are hurt as a result of
buying or using the sellers' commodities. If the responsibility falls upon the
producers or other sellers who provide the commodities to the affected sellers,
the latter are in turn entitled to seek compensation from the former after
making their own indemnities.
Consumers or other victims who suffer
personal injuries or property damage as a result of defective commodities may
demand compensation from the sellers or producers. If the producers are at
fault, the sellers may seek compensation from them after making their own
indemnities. If the sellers are at fault, the producers may have recourse to
similar action. Consumers may demand compensation from the service providers if
their legitimate rights and interests are hurt as a result of receiving
services.
Article 36
In the event of spin-offs or mergers of
the original enterprises, consumers whose legitimate rights and interests are
hurt as a result of buying or using commodities or receiving services may seek
compensation from the enterprises which have taken over the rights and
obligations of the original enterprises following the reorganization.
Article 37
In the case of producers who hurt the
legitimate rights and interests of consumers because they provide commodities
or services using the business licences of other people in violation of the
law, the consumers may demand compensation from them or from the holders of the
business licences.
Article 38
Consumers may seek compensation from the
sellers or service providers if their legitimate rights and interests are hurt
as a result of buying commodities or receiving services at trade fairs and
sales counters operated by concessionaires. If the trade fairs have ended or
the leases on the counters have expired, the consumers may demand compensation
from the sponsors of the trade fairs or the lessors of the counters, who in
turn are entitled to seek compensation from the sellers or service providers
after making their own indemnities.
Article 39
Consumers may seek compensation from the
producers if their legitimate rights and interests are hurt because the producers
use false advertisements to provide commodities or services. If the advertising
agents run false advertisements, the consumers may request administrative
departments to mete out punishment. The advertising agents shall be responsible
for making compensation if they cannot provide the producers' true names and
addresses.
Article 40
Unless otherwise provided for in this
law, producers shall bear civil liabilities pursuant to the "Law of the
People's Republic of China on Product Quality" and other pertinent laws
and regulations should any of the following circumstances arise in connection
with the commodities or services they provide:
(1) Where the commodities are defective;
(2) Where the commodities cannot
function as expected and are presented without any explanation at the time of
their sale;
(3) Where the commodity standards do not
match those specified on the commodities or their packages;
(4) Where the quality does not match
that stated in product descriptions, on samples, or through other means;
(5) Where the commodities are produced
or sold although their elimination has been clearly mandated by the state, or
they have lost their efficacy or undergone property changes;
(6) Where the commodities are not sold
in sufficient quantities;
(7) Where service items and charges
violate the agreements;
(8) Where consumers' requests for
repairing, reworking, replacing, or returning the commodities; for supplying
shortfalls; for refunding the commodity prices or service charges; or for
compensating for losses are deliberately shelved or unjustifiably rejected; and
(9) Where consumers' rights and
interests are hurt in other circumstances provided for in laws and regulations.
Article 41
Business operators who provide
commodities or services and whose products or services have caused physical
injury to consumers or other victims, shall pay for the latter's medical fees,
nursing charges during treatment period and loss of income due to absence from
work; and also - when disability results therefrom - expenses in acquiring
aiding apparatus needed by the victims, the victims' living subsidies,
disability compensations and the necessary living expenses of the victims'
dependents and - when a crime is committed - have their criminal liabilities
investigated according to law.
Article 42
Business operators who provide
commodities or services and whose products or services have caused death of the
consumers or other victims, shall pay for the latter's funeral expenses, death
compensation and the necessary living expenses of the victims' dependents and
when a crime is committed have their criminal liabilities investigated
according to law.
Article 43
Business operators who, in violation of
article 25 of this law, have infringed on the consumers' personal dignity or
personal freedom shall stop such infringements, restore the latter's
reputation, eliminate influences against the latter, offer apologies and pay
damages.
Article 44
Business operators who provide
commodities or services and whose products or services have caused damage to
the consumers' properties, shall, as demanded by the consumers, take such civil
liabilities as repair, rebuild, change, return of goods, full supply of short
items, refund of payments for goods or services and compensations for losses.
If there is an agreement between the business operators and the consumers, the
agreement should be enforced accordingly.
Article 45
With respect of sales of commodities
with warranty stipulations on repair, change, or return of goods either under
state regulations or an agreement between the business operators and the
consumers, the business operators should be responsible for the change or
return of such goods when the consumers find them not in normal working
conditions after two repairs during the warranty period.
When the consumers demand a repair,
change, or return of large commodities under a warranty clause, the business
operators should be responsible for the transportation charges reasonably
incurred.
Article 46
When business operators supply goods
through mail service, they should do so according to agreement. If they fail to
fulfill the agreement, they should, as demanded by the consumers, enforce the
agreement or refund payments and reimburse the consumers with costs reasonably incurred.
Article 47
When business operators supply goods or
services on a prepayment basis, they should do so according to agreement. If
they fail to fulfill the agreement, they should, as demanded by the consumers,
enforce the agreement or refund prepayments, pay interest derived therefrom and
reimburse the consumers with costs reasonably incurred.
Article 48
Business operators whose commodities
have been certified by the relevant departments as substandard according to law
shall accept return of such commodities as demanded by the consumers.
Article 49
Business operators found to have
committed fraud in providing goods or services shall, as demanded, compensate
the consumer with a sum doubling what the consumers have paid for such
commodities or services.
Article 50
When business operators commit one of
the acts described in the following paragraph, the provisions of the "Law
of the People' s Republic of China on Qualities of Domestically Produced
Products" and other relevant laws and regulations concerning the organs
and methods of punishment shall apply. Where there are no applicable provisions
of laws and regulations, the department in charge of industrial and commercial
administration shall order the business operators to rectify their acts and shall,
based on the circumstances, issue a warning, confiscate their illegal earnings
and or impose a fine at an amount equivalent to one to five times the amount of
their illegal earnings. Where there are no illegal earnings, a fine of up to
10,000 yuan shall be imposed. The department in charge of industrial and
commercial administration shall order the business operators to suspend
operations for rectification or rescind their business licences if the
circumstances of their offenses are serious:
(1) Producing or selling commodities not
in conformity with the personal and property safety requirements;
(2) Putting impure or fake materials in
the commodities, selling fake and inferior goods as genuine and quality goods,
or passing substandard commodities as qualified ones;
(3) Producing commodities which have
been ordered stopped by the state, or selling commodities that have expired and
deteriorated in quality;
(4) Falsifying place of production;
falsifying or using other's factory name and address; or falsifying or using
certification, brand name, and other quality marks;
(5) Selling products that fail to go
through necessary inspection and vaccination or falsifying the result of
inspection and vaccination;
(6) Making misleading, false propaganda
on commodities or service;
(7) Deliberately procrastinate or reject
without reason consumes' request for repair, reprocessing, replacing,
returning, replenishing the commodities; their request for refund; and their
request for compensation;
(8) Infringing on consumers' personal
dignity or encroaching on their personal freedom;
(9) Other acts that infringe on
consumers' rights and interests punishable under the provisions of laws and
regulations.
Article 51
Business operators who do not agree with
the administrative penalties may, within 15 days of the receipt of the penalty
decision, petition the body at the higher level for reconsideration. Business
operators who do not agree with the decision made after reconsideration may,
within 15 days of the receipt of the decision, bring suits at the people's
court. They may also go directly to the people's court to file suits.
Article 52
Those who obstruct, by acts or threats
of violence, the performance of duties by functionaries of relevant
administrative departments in accordance with law shall be investigated in
accordance with law to determine their criminal responsibility. Those who
obstruct or prevent functionaries of relevant administrative departments from
performing their duties in accordance with the law, without acts or threats of
violence, shall be punished in accordance with the provisions of the
"Regulations of the People's Republic of China Governing Punishment for
Offenses Against Public Order" .
Article 53
State functionaries who are guilty of
dereliction of duty or who shelter business operators to infringe on the
legitimate rights and interests of consumers shall be given administrative
penalties by other units or the organ at the higher level; when the
circumstances of their offense are serious and constitute a crime,
investigation shall be conducted to determine their criminal responsibilities.
Article 54
The purchase of capital goods by
peasants for use directly in agricultural production shall be handled with
reference to this law.
Article
55
This
law shall take effect on 1st January 1994.