(Source: "Legal Daily", page 3, April 9, 2015, reporter Zhang Yuan)

Paragraph 2 of Article 96 of the w88 sports betting Safety Law stipulates that if w88 sports betting is produced that does not meet w88 sports betting safety standards or w88 sports betting that is knowingly sold does not meet w88 sports betting safety standards, in addition to claiming compensation for losses, consumers may also demand compensation from the producer or seller ten times the price.

This clause is generally called the tenfold compensation clause. It strengthens the civil liability for w88 sports betting safety involving people's livelihood and enhances the intensity of punitive damages to prevent and sanction illegal acts.

“However, since the Food Safety Law was promulgated and implemented in 2009, its ten-fold compensation clause has actually not played as good a role as expected.” Recently at the Second China Consumer Protection Law Forum jointly organized by the w88 casino Law w88 casino, the w88 casino Consumer Protection Law Research Center and the Beijing No. 3 Intermediate People’s Court,Li Jun, Professor of Law w88 casino of w88 casinoThis is what he said when he spoke.

The reason why this is said,Li Junpointed out that the expectation that this provision would inspire consumers to actively defend their rights, whether in the practical or judicial fields, has not been fully realized. Of course, this is directly related to the low price and small quantity of the w88 sports betting itself, the high cost of judicial litigation, and the difficulty in forming interest incentives.

Read the information on ten times compensation cases decided in recent years,Li JunWe found that in fact, the plaintiff’s winning rate is relatively low, roughly around 30%, and sometimes even lower. In this regard, he pointed out that this status quo is simply not enough to play the role of the ten-fold compensation clause in the w88 sports betting Safety Law, hoping to punish illegal operators and illegal w88 sports betting production enterprises and prevent possible illegal acts in the future.

The existence of the above problems makes Li Jun feel worried. However, in his opinion, this is not the most prominent problem in the practical application of the ten-fold compensation clause.

“One of the most prominent phenomena in practice is that in the field of judicial practice, judges have very large differences in the application of this provision. In many similar cases, the actual judgment results are very different.”Li Junbelieves that this not only affects the unity of the legal system, but also affects the authority of the law.

atLi JunIt seems that the most important source of the differences in judgments lies in the differences in the understanding of Article 96 between the practical community and the academic community. The core of the disagreement lies in whether, according to the second paragraph of Article 96, when a seller should bear ten times the liability for compensation, it only relies on the two elements of knowingly knowing or selling w88 sports betting that does not meet w88 sports betting safety standards as the constituent elements for liability.

“The core reason is that there are differences in the interpretation of Article 96.”Li JunSay.

Li JunIntroduction, there are many differences in the interpretation of this clause in academic circles. One view is that the provisions of paragraph 1 of Article 96 - "Anyone who violates the provisions of this law and causes personal, property or other damage shall bear liability for compensation in accordance with the law" - conforms to the constituent elements of tort liability and is a typical tort liability. Therefore, according to the coherence of the meaning of the legal provisions and the principle of systematic interpretation, the first paragraph stipulates the liability for compensatory damages, the second paragraph stipulates the liability for punitive damages, and the second paragraph is a supplementary provision of the first paragraph.

"Based on the above understanding, some people believe that the elements of ten-fold compensation should include the result of damage, that is, the consumer's claim for ten-fold compensation must be based on actual damage. Knowing is also interpreted as clear knowledge, and it is believed that the plaintiff should provide more substantive evidence."Li JunExplained.

Li JunContinue to introduce that the second view is that the first and second paragraphs of Article 96 are independent clauses, and the ten-fold compensation stipulated in the second paragraph is an independent claim. For the seller, it is the ten-fold compensation liability based on the liability for breach of contract. Its constituent elements are the direct and clear provisions of the second paragraph, that is, as long as you produce w88 sports betting that does not meet w88 sports betting safety standards or sell w88 sports betting that you know does not meet w88 sports betting safety standards, you can request ten times the compensation regardless of whether it causes actual damage to consumers.

"The third view is that the first paragraph is not just a provision on tort liability. There are multiple obligated subjects for 'violation of the provisions of this law', not only producers and sellers, but also false advertising spokespersons, w88 sports betting inspection agencies, etc. Therefore, under such a situation, the basis for 'bearing liability for compensation in accordance with the law' is not only the w88 sports betting Safety Law, but also the General Principles of Civil Law, Product Quality Law, Consumer Rights Protection Law, etc."Li Junsaid that assuming liability for compensation is not only assuming liability for tort compensation, but also assuming liability for tort, liability for breach of contract, etc. in accordance with relevant laws.

Li Junsaid that this view holds that the provisions of the first paragraph are actually incomplete legal provisions and need to be combined with other legal provisions for judicial application. Although there is a progressive relationship between the second paragraph and the first paragraph, the nature of punitive damages stipulated in this paragraph is actually closely related to the nature of liability stipulated in the first paragraph, which includes not only tort liability, but also contract liability.

“It is precisely because there are so many differences in academic circles’ views on tenfold compensation that there are so many differences in the application of tenfold compensation in w88 sports betting safety cases in the judicial field.”Li JunSay.

Li Junbelieves that from the full text of the law, Article 96 is the only substantive rule in the w88 sports betting Safety Law that stipulates the content of civil legal liability. It is definitely incomplete if we only understand the first paragraph as tort liability. Regarding the interpretation of the second paragraph,Li Junfurther agrees with the second view, that is, the seller's tenfold compensation is based on contractual liability and does not require actual damage as an element. He believes that such an interpretation is not only faithful to the original text of the law, but also more consistent with the legislative purpose of the w88 sports betting Safety Law. Moreover, the ten-fold compensation clause actually drew more on the double compensation provisions of the Consumer Protection Law at that time, which was obviously based on contractual liability.

Based on the above interpretation,Li Junbelieves that in order to solve such a dilemma in w88 sports betting safety judicial practice, it is urgent to amend Article 96 of the w88 sports betting Safety Law. It is recommended to draw lessons from Article 55 of the new Consumer Protection Law, list punitive damages separately, and use two paragraphs to stipulate them based on contractual liability and tort liability respectively, so as to facilitate the unification of understanding and judicial practice.

AttachmentOriginalReport link:http://epaper.legaldaily.com.cn/fzrb/content/20150409/Articel03002GN.htm

Other mediaReprint:

People's Daily Online:http://legal.people.com.cn/n/2015/0409/c188502-26817038.html

Xinhuanet:http://news.xinhuanet.com/finance/2015-04/09/c_127670888.htm

China.com:http://www.china.com.cn/legal/2015-04/09/content_35274694.htm

China News Network:http://www.chinanews.com/fz/2015/04-09/7193550.shtml

China Court Network:http://www.chinacourt.org/article/detail/2015/04/id/1580493.shtml

Justice Network:http://news.jcrb.com/jxsw/201504/t20150409_1494637.html

China Economic Net:http://www.ce.cn/xwzx/fazhi/201504/09/t20150409_5056298.shtml

Sina:http://news.sina.com.cn/o/2015-04-09/065031696616.shtml

NetEase:http://j.news.163.com/docs/99/2015040908/AMOECJ6S9001CJ6T.html

ifeng.com:http://news.ifeng.com/a/20150409/43513341_0.shtml

Global Network:http://china.huanqiu.com/hot/2015-04/6135777.html