>>>welcome 河南大学, You have logged in.
Logout History Contact us  
Font Size:  A A A Search “Fabao” Window English 中文 = 简体  繁体
  Favorite   DownLoad   Print
 
Zhang Zhiqiang v. Xuzhou Suning Electric Appliances Company Limited (Dispute over Injury of Consumer's Rights and Interests)
张志强诉徐州苏宁电器有限公司侵犯消费者权益纠纷案
【法宝引证码】
  • Type of Dispute: Civil-->Tort ★ ; Civil-->Deleted Cause of Action
  • Legal document: Judgment
  • Judgment date: 04-21-2006
  • Procedural status: Trial at Second Instance
  • Source: SPC Gazette,Issue 10,2006

Zhang Zhiqiang v. Xuzhou Suning Electric Appliances Company Limited (Dispute over Injury of Consumer's Rights and Interests)
(Dispute over Injury of Consumer's Rights and Interests)
张志强诉徐州苏宁电器有限公司侵犯消费者权益纠纷案

Zhang Zhiqiang v. Xuzhou Suning Electric Appliances Company Limited
(Dispute over Injury of Consumer's Rights and Interests)

 

张志强诉徐州苏宁电器有限公司侵犯消费者权益纠纷案

 【裁判摘要】
 商品经营者为消费者提供商品或服务时,应当遵循诚实信用原则,消费者亦有权知悉其所购买、使用的商品或接受的服务的真实情况。在侵犯消费者权益纠纷案件中,消费者主张商品经营者提供的商品存在品质问题,并提供了相应证据的,商品经营者如主张该商品不存在品质问题,应对其主张承担举证责任。
BASIC FACTS 
Plaintiff: Zhang Zhiqiang, male, 42, of the Han ethnicity, employee of Xuzhou Chemical Machine Factory, dwelling at Machang Lake, Xuzhou City. 原告:张志强,男,42岁,汉族,徐州市化机厂职工,住徐州市马场湖。
Defendant: Xuzhou Suning Electric Appliances Company Limited, domiciled at Huaihai West Road, Xuzhou City. 被告:徐州苏宁电器有限公司,住所地:徐州市淮海西路。
Legal Representative: Sun Minghai, general manager of the company. 法定代表人:孙明海,该公司总经理。
Zhang Zhiqiang, the plaintiff, brought a lawsuit with the People's Court of Quanshan District, Xuzhou Municipality, Jiangsu Province (hereinafter referred to as Quanshan District Court) against Xuzhou Suning Electric Appliances Company Limited (hereinafter referred to as Suning Company) due to a dispute over injury of his rights and interests as a consumer. 原告张志强因与被告徐州苏宁电器有限公司(以下简称苏宁公司)发生侵犯消费者权益纠纷,向江苏省徐州市泉山区人民法院提起诉讼。
Zhang Zhiqiang alleged: I bought a refrigerator from Suning Company, and had it replaced due to a quality problem. Suning Company replaced the new refrigerator with a used one, which is a fraudulent act. Hence, Zhang Zhiqiang claimed against Suning Company for refunding the purchase price at doubled amount and indemnifying the loss of income due to missed working time, the traffic expenses, telephone bill charges and other losses, totaling 3,320 Yuan. 原告张志强诉称:本人从苏宁公司购买冰箱一台,后因该冰箱存在质量问题进行调换,被告苏宁公司用旧冰箱冒充新机器予以调换,存在欺诈行为,故要求被告双倍返还购货款并赔偿误工费、交通费、电话费等损失共计3320元。
Suning Company argued: we replaced Zhang Zhiqiang's refrigerator with a new one without any quality problem, so we did not commit any fraudulent act. Suning Company requested the court to reject Zhang Zhiqiang's litigation claims. 被告苏宁公司辩称:被告给原告张志强调换的冰箱是新机,亦无质量问题,不存在欺诈行为,请求法院驳回张志强的诉讼请求。
It was verified by Quanshan District Court after trial: on January 1, 2004, Zhang Zhiqiang bought an Electrolux BCD-170K refrigerator from Suning Company at the price of 1,600 Yuan, with the machine numbered 34600150 (hereinafter referred to as the first refrigerator). Later, the refrigerator met with a quality problem, Suning Company dropped in and repaired it for twice but failed, so it had to replace the refrigerator by providing Zhang Zhiqiang with a new one of the same brand and the same model (hereinafter referred to as the second refrigerator) on July 24, 2004. On that day, Suning Company's employees delivered the second refrigerator at the downstairs of Zhang Zhiqiang's abode, they unpacked the second refrigerator in the presence of neither Zhang Zhiqiang nor any of his family members, and then carried it upstairs and handed it over to Zhang Zhiqiang's family. Then, Suning Company's employees left with the first refrigerator without having the refrigerator checked and accepted by Zhang Zhiqiang or his family, taking back the voucher on “three guarantees” or the user's manuals, etc. of the first refrigerator, leaving the voucher on “three guarantees” of the second refrigerator or other materials, or fulfilling any necessary handover procedure. Later, Zhang Zhiqiang found stains and mould speckles, etc. on the second refrigerator, and thought it was a used refrigerator. He negotiated with Suning Company, but both parties failed to reach any consensus. 徐州市泉山区人民法院经审理查明: 2004年1月1日,原告张志强在被告苏宁公司以1600元的价格购买一台依莱克斯 BCD-170K型冰箱,机号为34600150(以下简称第一台冰箱)。后因该机出现质量问题,苏宁公司两次上门进行维修仍未修复,遂于2004年7月24日为张志强更换一台同品牌同型号的冰箱(以下简称第二台冰箱)。当日,苏宁公司的工作人员将第二台冰箱送至张志强住宅楼下,在张志强及其家人不在场的情况下自行拆除外包装后,将第二台冰箱抬上楼交给张志强的家人。苏宁公司的工作人员未经张志强及其家人验货,未收回第一台冰箱的三包凭证、说明书等资料,同时也未将第二台冰箱的三包凭证等资料留下,未办理必要的交接手续,即带第一台冰箱离开。后张志强发现第二台冰箱上有污渍、霉斑等,认为该冰箱系使用过的旧冰箱,遂与苏宁公司进行交涉,双方协商未果。
The above facts can be proved with the voucher submitted by Zhang Zhiqiang on “three guarantees” of the first refrigerator, the user's manuals, the booklet for repair, the invoices, a videotape on the second refrigerator, the pick-up list submitted by Suning Company, and both parties' statements in court. 上述事实,有原告张志强提交的第一台冰箱的三包凭证、使用说明、维修指南、发票以及其录制的关于第二台冰箱情况的录象带,被告苏宁公司提交的提货单及双方当事人当庭陈述为证。
DISPUTED ISSUES 
The focuses of the dispute in the present case are whether the second refrigerator provided by Suning Company is a new machine, and whether Suning Company committed any fraud.

PROCEDURAL POSTURE

Quanshan District Court held that, a business operator shall, when providing consumers with any commodity or service, comply with the principles of honesty and good faith, and the consumers shall also have the right to know the true information on the commodity they buy or use or the service they accept. Suning Company is a business operator that has specially run household electric appliances for long, and has richer experiences than ordinary consumers in the respect of avoiding and settling disputes, so Suning Company should have enough capacity to prove that the second refrigerator delivered to Zhang Zhiqiang was a new machine. Therefore, the burden of proof to prove the second refrigerator was a new machine should be borne by Suning Company. Since Suning Company had no evidence to prove that the second refrigerator was a new machine, it should bear the legal consequence for failing to provide evidence. Moreover, the voucher on “three guarantees”, which were handed over by Suning Company to Zhang Zhiqiang states: “The refrigerator shall not be under “three guarantees” in any of the following circumstances…… 4. The model on the voucher on “three guarantees” does not conform to the product for repair or is altered.” Therefore, if the machine number registered on the materials including the voucher on “three guarantees” of the first refrigerator, which were held by Zhang Zhiqiang, did not conform to the second refrigerator, it would be difficult for Zhang Zhiqiang to enjoy the services of “three guarantees” in the future use. To sum up, Suning Company was unable to prove that the second refrigerator was a new machine, which is a service blemish when providing Zhang Zhiqiang with the commodity, and brought difficulties to Zhang Zhiqiang in enjoying the after-sale services, so it was had subjective fault. Suning Company's acts violated the principles of honesty and good faith, constituted a fraud, and it should bear corresponding civil liabilities.

 本案争议的焦点是被告苏宁公司提供的第二台冰箱是否为新机,被告是否存在欺诈行为。
With respect to the issue of the losses which were caused from the dispute, and for which Zhang Zhiqiang claimed against Suning Company, such as the loss of income due to missed working time, the traffic expenses, and the telephone bill charges, etc., it was found from examination that the telephone bill charges asserted by Zhang Zhiqiang were expenses incurred from his negotiations by telephone with the general seller in Nanjing, and were irrelevant to Suning Company, thus the assertion should not be supported; Zhang Zhiqiang negotiated with Suning Company due to the dispute in the present case, and would inevitably suffer from losses such as the loss of income due to missed working time and traffic expenses. The loss of income due to missed working time should, in light of the actual circumstance, be calculated for one day into 43 Yuan on the basis of 15,581Yuan of the urban per capita annual income of the last year. The amount of traffic expenses asserted by Zhang Zhiqiang was 20 Yuan, which should also be supported. 徐州市泉山区人民法院认为,经营者为消费者提供商品或服务时,应当遵循诚实信用原则,消费者亦有权知悉其所购买、使用的商品或接受的服务的真实情况。本案被告苏宁公司是长期专门从事家用电器经营的商家,在避免纠纷、解决纠纷方面,较普通消费者具有更为丰富的经验,应当具备足够的能力来证实交付原告张志强的第二台冰箱为新机。因此,证明第二台冰箱为新机的举证责任应由被告承担。现被告无证据证实第二台冰箱为新机,应当承担举证不能的法律后果。此外,被告给付原告的三包凭证中明确记载:“属下列情况之一者,不实行三包……4、三包凭证型号与修理产品不符或者涂改的。”据此,原告持有的第一台冰箱的三包凭证等资料登记的机号与第二台冰箱不符,必然导致原告在今后的使用过程中难以享受三包服务。综上,被告不能证明其提供的第二台冰箱是新机,且在为原告提供商品的过程中存在服务瑕疵,给原告享受售后服务带来困难,具有过错。被告的行为违反了诚实信用原则,构成欺诈,应当承担相应的民事责任。
Therefore, Quanshan District Court adjudicated as follows on October 25, 2004: 关于原告张志强要求被告苏宁公司赔偿其因发生纠纷而导致的误工费、交通费、电话费等损失的问题,经审查,张志强主张的电话费系其与南京总销售商电话交涉时的支出,与苏宁公司无关,故不予支持;张志强因本案纠纷与苏宁公司交涉,必然发生误工费、交通费的损失,误工费酌定根据上年度城市人均收入15 581元按1天计算,为43元,原告主张的交通费损失金额为20元,亦予以支持。
I. Xuzhou Suning Electric Appliances Company Limited shall, within 10 days as of effectiveness of the present judgment, refund 1,600 Yuan of purchase price to Zhang Zhiqiang; 据此,徐州市泉山区人民法院于2004年10月25日判决:
II. Xuzhou Suning Electric Appliances Company Limited shall, within 10 days as of effectiveness of the present judgment, indemnify 1,600 Yuan of losses to Zhang Zhiqiang; 一、自本判决生效之日起十日内,被告徐州苏宁电器有限公司返还原告张志强购货款1600元;
III. Xuzhou Suning Electric Appliances Company Limited shall, within 10 days as of effectiveness of the present judgment, indemnify 63 Yuan to Zhang Zhiqiang, including 43 Yuan of the loss of income due to missed working time and 20 Yuan of traffic expenses; 二、自本判决生效之日起十日内,被告徐州苏宁电器有限公司赔偿原告张志强损失1600元;
IV. Zhang Zhiqiang's litigation claim against Xuzhou Suning Electric Appliances Company Limited for indemnity of telephone bill charges shall be rejected; and 三、自本判决生效之日起十日内,被告徐州苏宁电器有限公司赔偿原告张志强误工费43元,交通费20元,合计63元;
V. Zhang Zhiqiang shall, within 10 days as of effectiveness of the present judgment, return the Electrolux BCD-170Kmodel refrigerator to Xuzhou Suning Electric Appliances Company Limited. 四、驳回原告张志强要求被告徐州苏宁电器有限公司赔偿电话费的诉讼请求;
The 150 Yuan of case acceptance fee and 50 Yuan of other litigation cost shall be borne by Xuzhou Suning Electric Appliances Company Limited. 五、自本判决生效之日起十日内,原告张志强返还被告徐州苏宁电器有限公司依莱克斯BCD-170K型号冰箱一台。
Suning Company was dissatisfied with the judgment of the first instance, and appealed to Xuzhou Intermediate Court, on the ground that: Suning Company provided evidence to prove that the replaced refrigerator it delivered to Zhang Zhiqiang was a new machine. Although Zhang alleged that it was a used machine, he failed to perform the obligation of providing any evidence. Quanshan District Court affirmed that the second machine was a used one only on the basis of Zhang's suspicion without making any test. Such affirmation was short of factual and legal basis. Because the re-provided machine was of the same type and the same model, and Zhang held the voucher on “three guarantees” of the first refrigerator, he could completely enjoy the services of “three guarantees” even though the registered machine number was different from that of the second refrigerator. To sum up, Suning Company held that, Quanshan District Court affirmed the wrong facts and misapplied the law, and the procedures were illegal, too, so it requested Xuzhou Intermediate Court to verify the facts, amend the judgment of the first instance or remand the case to Quanshan District Court for retrial. 案件受理费150元,其他诉讼费50元,由被告徐州苏宁电器有限公司承担。
In order to prove that the second refrigerator was a new machine, Suning Company applied to the court for permitting Shen Zhengjun, the deliveryman who carried the refrigerator to Zhang Zhiqiang, to appear in the court to testify. 苏宁公司不服一审判决,向徐州市中级人民法院提起上诉,理由是:上诉人已经提供证据证明给被上诉人张志强更换的冰箱为新机,张志强虽主张是用过的旧机,但是未履行任何举证义务。一审法院未经任何检测,仅凭被上诉人的怀疑就认定第二台机器为旧机,既缺乏事实依据,又缺乏法律依据。因为更换的是同机型同型号的机器,被上诉人手中有第一台冰箱的三包凭证,虽然登记机号与第二台冰箱不同,但是型号一致,故被上诉人完全可以享受到三包服务。综上,上诉人认为,一审法院认定事实及适用法律均错误,且程序违法,请求二审法院查明事实,依法改判或发回重审。
Zhang argued that: 1. Although Suning Company showed the pick-up note to prove that the refrigerator picked out of the warehouse was a new one, it failed to prove that the one sent to Zhang Zhiqiang's abode was a new one; 2. Suning Company did not acknowledge its refusal to provide Zhang Zhiqiang with services of “three guarantees”, but alleged that the voucher on “three guarantees” of the first machine could also enable Zhang Zhiqiang to enjoy after-sale services regarding the second refrigerator. In this regard, Zhang held that, the provision of proper voucher on “three guarantees” should be the seller's collateral obligation in the contract on the sale of the refrigerator, and should comply with legal provisions; so it is impossible for him to use the voucher of the first refrigerator to secure services for the second; 3. Suning Company acknowledged that the second refrigerator was stained, and the fact could completely prove that the second refrigerator provided by Suning Company was not a new machine; 4. Suning Company requested to provide evidence in the second instance, but Zhang argued that the time limit for providing evidence had expired, thus this request should not be permitted. Even if Suning Company is permitted to provide evidence, the witness is its employee, and thus his testimony had no probative force. To sum up, in the judgment of the first instance, the facts were clearly found, the application of law was correct, and the procedures were lawful. Zhang Zhiqiang requested Xuzhou Intermediate Court to reject the appeal in accordance with law, and to sustain the judgment of the first instance. 上诉人苏宁公司为证明第二台冰箱为新机,申请给被上诉人张志强送冰箱的送货员申正军出庭作证。
During the second instance, Shen Zhengjun, the witness provided by Suning Company and the deliveryman who carried the second refrigerator to Zhang Zhiqiang, appeared in the court to testify. Shen Zhengjun testified: He and the employees of the After-sales Service Department of Suning Company took out a refrigerator from No. 605 warehouse, and directly delivered it to Zhang Zhiqiang's abode to the west of Machang Lake. The customer came downstairs, and after unpacking the box, they delivered the second refrigerator upstairs, and then carried the first refrigerator away. In this regard, Zhang held: Suning Company's provision of evidence had exceeded the statutory time limit for presenting evidence, and the testimony of the witness could not be used as new evidence, nor could it be affirmed in the second instance; because the testimony of the witness did not clearly state the time and place of delivery, the witness was merely a deliverer who had no relevant experiences or knowledge, and his statements were inconsistent with the delivery facts recognized by Zhang. In addition, an electric appliance shall not be unpacked before it is delivered upstairs. 被上诉人张志强答辩称:1.上诉人苏宁公司虽出具提货单证明提出仓库的冰箱是新的,但不能证明送到被上诉人家的是新冰箱;2.上诉人认为其不存在拒绝给被上诉人提供三包服务的事实,主张用第一台机器的三包凭证也可以使被上诉人就第二台冰箱享受售后服务。对此,被上诉人认为,提供适当的三包凭证应是冰箱买卖合同中卖方的附随义务,应该按照法律规定办理,事实上第一台冰箱的凭证也不可能供第二台冰箱使用;3.对于第二台冰箱有污渍,上诉人是认可的,该事实完全可以证明上诉人提供的第二台冰箱不是新的机器;4.上诉人要求在二审时举证,被上诉人认为已经超过举证期限,不应允许。即使允许其举证,因其提供的证人是本公司职员,这样的证人证言也没有证明力。综上所述,一审认定事实清楚,适用法律正确,程序合法,请求二审法院依法驳回上诉,维持一审判决。
Xuzhou Intermediate Court held that, in order to determine whether the second refrigerator replaced by Suning Company for Zhang Zhiqiang was a new machine, the transfer of the burden of proof must be clarified first, i.e., who should prove whether the second refrigerator was a new machine. In accordance with the provisions of the presently effective laws of China, the general principle on the burden of proof is “whoever asserts shall provide evidence”, i.e., the party putting forward litigation claims shall bear the burden of proof regarding its assertion. However, the law also established the special rule of transfer of the burden of proof, i.e., inversion of the burden of proof. Inversion of the burden of proof is an exceptional provision and necessary supplement to the general rule on the transfer of the burden of proof, and must be used on clear legal basis, instead of being abused. Paragraph 1 of Article 4 of the “Some Provisions of the Supreme People's Court on Evidence in Civil Litigation” (hereinafter referred to as Provisions on Evidence in Civil Litigation) enumerated eight circumstances under which the burden of proof shall be inverted, and Paragraph 2 of the article prescribes: “Where there are special provisions in relevant laws concerning the burden of proof, such provisions shall prevail.” The present case is under none of the circumstances enumerated in the above provision, nor is there any relevant law containing a special provision on transfer of the burden of proof regarding the lawsuit in question. Hence, in the present case, the burden of proof should not be inverted, but be determined according to the general principle on the transfer of the burden of proof. Since Zhang Zhiqiang alleged that the second refrigerator was a used machine, he should provide evidence to prove this allegation. Therefore, it was inappropriate for Quanshan District Court to transfer the burden of proof to Suning Company. During the first instance, Zhang submitted the videotape on the second refrigerator, but he had no other evidence to corroborate the fact, and he should not affirm that the second refrigerator was a used machine only on the basis of the videotape. In conclusion, Zhang Zhiqiang had no sufficient evidence to assert that the second refrigerator was a used machine, and Suning Company's appellate grounds were tenable and should be supported. 二审期间,上诉人苏宁公司提供的证人、给被上诉人张志强送第二台冰箱的送货员申正军出庭作证。申正军证实:他和苏宁公司售后服务部的工作人员一起从605仓库提出冰箱,直接送到马场湖西张志强的住处。用户下楼来,在楼下拆封后,他们把第二台冰箱送到楼上,然后把第一台冰箱抬下带走。对此,张志强认为:上诉人的举证已经超过了法定的举证期限,该证人证言不能作为新的证据,二审不应认定;该证人证言没有对送货的时间、地点进行明确说明,且该证人只是送货的,没有相关的经验和知识,其陈述的情况和被上诉人认可的送货情况不相符合。另外,电器在送货上楼前也不应拆封。
With respect to Zhang's claim for mutual return and for Suning Company's indemnity of his loss of income due to missed working time and his traffic expenses, although Suning Company delivered the second refrigerator to Zhang's home in the process of his replacement of the refrigerator, it did not fulfill necessary handover procedures, nor did it give the voucher on “three guarantees” of the second refrigerator to him. Although Suning Company asserted that Zhang could enjoy normal after-sales services regarding the second refrigerator upon the strength of the voucher on “three guarantees” of the first refrigerator, the machine number appearing on the voucher on “three guarantees” of the first refrigerator, which was held by Zhang Zhiqiang, was inconsistent with the machine number of the second refrigerator, and inevitably, Zhang would be unable to enjoy the normal after-sales services. It was correct for Quanshan District Court to affirm that Suning Company had flaws in providing services. Considering that he met with many troubles in the process of buying the refrigerator, such as repair, replacement after the failure in repair, falling into dispute after the replacement, etc., and that Suning Company had flaws in its services, he had lost its confidence with Suning Company's commodity and service. Therefore, it was not inappropriate for Quanshan District Court to adjudicate that both parties should return property to each other and that Suning Company should indemnify the loss of income due to missed working time and the traffic expenses due to the dispute in question, but the affirmation that Suning Company committed a fraudulent act and the adjudication that Suning Company should indemnify Zhang Zhiqiang's economic losses equivalent to the purchase price were short of sufficient evidence and should be amended. 徐州市中级人民法院认为,要确定上诉人苏宁公司为被上诉人张志强更换的第二台冰箱是否为新机,首先必须明确举证责任的分配,即由谁对第二台冰箱是否为新机进行证明。根据我国现行法律的规定,一般的证明责任分配原则是“谁主张,谁举证”,即提出诉讼请求的一方当事人应对其诉讼主张承担举证责任。但是,法律同时也设置了证明责任分配的特殊规则,即举证责任倒置。举证责任倒置是对证明责任分配一般原则的例外规定和必要补充,必须有明确的法律依据方可使用,不能任意扩大适用范围。最高人民法院《关于民事诉讼证据的若干规定》(以下简称民事诉讼证据规定)第四条第一款列举了应当适用举证责任倒置的八种情形,同时该条第二款规定:“有关法律对侵权诉讼的举证责任有特殊规定的,从其规定。”本案既不具有上述规定列举的应当适用举证责任倒置的情形,也没有相关法律对本案涉及的侵权诉讼的举证责任分配作出特殊规定,故本案不应适用举证责任倒置,而应该按照证明责任分配的一般原则确定举证责任。张志强主张第二台冰箱是使用过的旧机器,即应由其举证加以证明,一审法院将该项举证责任分配给上诉人不当。一审期间,张志强虽然提交了关于第二台冰箱情况的录像带,但没有其他证据相互印证,不能仅根据该录象带认定第二台冰箱是使用过的旧机器,张志强主张第二台冰箱是使用过的旧机器证据不足,上诉人的上诉理由成立,予以支持。
Therefore, Xuzhou Intermediate Court adjudicated on March 8, 2005: 关于被上诉人张志强要求互相返还并由上诉人苏宁公司赔偿其误工费、交通费的问题,上诉人在为被上诉人更换冰箱的过程中,虽然将第二台冰箱送至被上诉人家中,但没有履行必要的交接手续,也没有将第二台冰箱的三包凭证交付被上诉人。虽然上诉人主张被上诉人可依据第一台冰箱的三包凭证就第二台冰箱享受正常的售后服务,但是被上诉人持有的第一台冰箱的三包凭证所载机号与第二台冰箱机号不符,必然导致被上诉人不能享受正常的售后服务。一审法院认定上诉人在服务中存在瑕疵是正确的。考虑到被上诉人在购买冰箱的过程中,经历了购机后修理、修理不好又调换、调换后又发生纠纷等诸多情况,加之上诉人在服务过程中存在瑕疵,已经导致被上诉人对上诉人的商品及服务失去信心,一审法院判决双方互相返还并由上诉人赔偿被上诉人因本案纠纷造成的误工费、交通费并无不当,但认定上诉人存在欺诈行为并判决上诉人赔偿被上诉人相当于一倍货款的经济损失,证据不足,应予改判。
I. Items (1), (3), (4) and (5) of No. 1961 (2004) civil judgment of Quanshan District Court shall be sustained. 据此,徐州市中级人民法院于2005年 3月8日判决:
II. Item (2) of No. 1961 (2004) civil judgment of Quanshan District Court shall be revoked. 一、维持徐州市泉山区人民法院 (2004)泉民一初字第1961号民事判决第 (一)、(三)、(四)、(五)项。
III. Zhang Zhiqiang's litigation claim against Suning Company for indemnity of 1,600 Yuan of losses shall be rejected. 二、撤销徐州市泉山区人民法院 (2004)泉民一初字第1961号民事判决第 (二)项。
The 150 Yuan of case acceptance fee in the first instance, 50 Yuan of other litigation cost, and the 143 Yuan of case acceptance fee in the second instance, totaling 343 Yuan, shall be borne by Suning Company. 三、驳回被上诉人张志强要求上诉人苏宁公司赔偿1600元损失的诉讼请求。
Zhang Zhiqiang was dissatisfied with the judgment of the second instance, and applied to the Intermediate People's Court of Xuzhou Municipality (Xuzhou Intermediate Court) for post-final retrial on the ground that: 1. In the judgment of the second instance, the facts were unclear, and the transfer of the burden of proof was wrong. He submitted the videotape in both the first and the second instances, and the contents of the videotape were sufficient to prove that the second refrigerator provided by Suning Company was a used machine or an inferior one. As a commodity business operator, Suning Company should provide the ex-factory conformity certificate, the user's manuals and the voucher on “three guarantees” of the second refrigerator, but it failed to provide such documents. 2. The trial procedures in the second instance were illegal. With respect to the videotape provided by Zhang, Xuzhou Intermediate Court refused to hold a cross-examination for it on the ground that Zhang failed to provide the player, but adopted the testimony of witness put forward by Suning Company during the second instance. 3. The responsibilities to authenticate and prove the quality of the refrigerator should remain with the producer and the seller, which conformed to Article 7 of the Provisions on Evidence in Civil Litigation. 一审诉讼费150元,其他诉讼费50元;二审诉讼费143元,合计343元,由上诉人苏宁公司负担。
Neither party provided any new evidence. Xuzhou Intermediate Court played the videotape provided by Zhang Zhiqiang during the re-examination, and the videotape manifested that the second refrigerator had the following problems: 1. The compressor had a coarse appearance, and the welding points are not protected by black paint; 2. The filter is rusted; 3. The metal copper in the machine is rusted; 4. The red paint in the machine is not coated evenly; 5. The plug and the wires are damaged; and 6. The three screws in the machine are of different sizes. 张志强不服二审判决,向徐州市中级人民法院申请再审,理由是:1.二审认定事实不清,举证责任分配错误。再审申请人在原一、二审中均提交了录像带,该录象带的内容足以证明被申请人苏宁公司提供的第二台冰箱为旧机或次机。被申请人作为商品经营者,应提供第二台冰箱的出厂合格证、使用说明书及三包凭证等,但其确未提供;2.二审审判程序违法。对再审申请人提供的录像带,二审法院以再审申请人未提供播放设备为由不予质证,而对被申请人在二审期间新提出的证人证言予以采信; 3.对电冰箱质量的鉴定和证明应由生产者及销售者负责,这也符合民事诉讼证据规定第七条的规定。
Suning Company's opinions on cross-examination of the videotape were as follows: 1. If the second refrigerator provided by Suning Company contains the above said defects, Zhang Zhiqiang should have refused to accept it, or required the deliverer to sign his name to confirm such defects; 2. It cannot be proved that the refrigerator in the videotape is the second refrigerator delivered by Suning Company; 3. The time of delivery of the second refrigerator to Zhang Zhiqiang's home was July 24, 2004, but the time of production of the videotape was August 9, 2004, and within this period, it was quite possible for Zhang to cause the above said problems to the refrigerator. 双方当事人均未提供新的证据。徐州市中级人民法院在本案复查期间,播放了再审申请人张志强提供的录像带,该录像带表明第二台冰箱存在以下情况:1.压缩机外观粗糙,焊接点无黑漆保护;2.过滤器生锈;3.机内金属铜生锈;4.机内红漆涂抹不均;5.插头和电线破损;6.机内三颗螺丝规格不同等。
During the post-final retrial, the focus of the dispute between both parties was still whether the second refrigerator was a new machine. 被申请人苏宁公司对该录像带的质证意见为:1.如果苏宁公司提供的第二台冰箱存在上述缺陷,再审申请人张志强应当拒收,或要求送货人员签字确认;2.录像带里显示的冰箱不能证明就是苏宁公司送去的第二台冰箱;3.第二台冰箱送到张志强家中的时间是2004年7月24日,录像带制作的时间为2004年8月9日,在此时间内张志强的行为也可导致冰箱出现上述问题。
JUDGMENT'S REASONING 再审期间,双方当事人争议的焦点仍是第二台冰箱是否为新机的问题。
Xuzhou Intermediate Court held: 
(1) Article 8 of the “Law of the People's Republic of China on the Protection of the Rights and Interests of Consumers” (hereinafter referred to as the Law on the Protection of the Rights and Interests of Consumers) prescribes: “A consumer shall have the right to know the truth concerning the commodities he purchases, uses or the services he receives. A consumer shall have the right to require relevant information of a business operator providing commodities on the price, place of origin, producer, usage, functions, specifications, grade, main ingredients, date of production, date of expiry, certificate of inspection, operation manual and after-sale services, or the contents, specifications and fees of services in respect of commodities or services as the situation requires.” Therefore, Zhang Zhiqiang, as a consumer, should have the right to claim against Suning Company, the business operator, for knowing the true information about the second refrigerator. Accordingly, Suning Company should be obligated to make an explanation to him. 徐州市中级人民法院认为:
(2) Suning Company committed fraudulent acts, and should bear the liability for punitive damages. Article 49 of the Law on the Protection of the Rights and Interests of Consumers prescribes: “A business operator that practices fraud in providing any commodity or service must, at the request of the consumer, increase the compensation for losses incurred by such consumer. The amount of the increase in compensation shall be the price of the commodity purchased or the fees for the service received by the consumer.” Article 68 of the “Opinions of the Supreme People's Court on Some Issues concerning the Implementation of the General Principles of the Civil Law of the People's Republic of China (for Trial Implementation)” prescribes: “Where either party purposely conveys any false information to the other party, or purposely disguises any fact so as to induce the other party into making any false expression of will, such act shall be affirmed as a fraudulent act.” Zhang asserted that Suning Company should bear the liability for punitive damages, i.e., the burden of proof to prove whether Suning Company committed a fraudulent act. In the present case, Zhang had provided the videotape he produced, which proves that Suning Company's second refrigerator was not a new machine, and had many superficial defects. Meanwhile, if the second refrigerator was a new machine, it should be attached with documents, and Suning Company also acknowledged it did not provide Zhang with vouchers attached to the second refrigerator (the conformity certificate, the repair list, the user's manuals, etc.) In accordance with Article 27 of the “Product Quality Law of the People's Republic of China土豪我们做朋友好不好”, the marks on products or the packing of a product must be genuine, and bear a certificate of product quality inspection. If, according to the features of the product and the requirements for use, the specifications, grade or the name and contents of the major ingredients are required to be specified, they shall be so specified in Chinese; while if such details are required to be informed to consumers in advance, they shall be marked on the external packing, or the relevant materials shall be provided to consumers in advance. This provision is compulsory, and Suning Company, as a commodity seller, should know this point clearly, but it failed to provide Zhang with the documents attached to the second refrigerator. Its act was intentional concealment of the true facts, and shall be affirmed as fraud. Suning Company asserted that even if the documents attached to the first refrigerator were taken back and the documents attached to the second refrigerator were not provided, Zhang could still enjoy after-sales services for the second refrigerator upon strength of the documents attached to the first refrigerator. In this regard, the court holds that, the attached documents are identity certificates of the commodity, which are correspondent to the commodity, and are irreplaceable. Suning Company's above assertion does neither conform to common sense, nor to the character of the commodity, and Suning Company never showed the attached documents in the first instance, second instance or even during the post-final retrial, so it cannot be determined whether the second refrigerator was attached with documents. That is, it cannot be determined whether the second refrigerator was an unused new machine, thus Suning Company's demurral assertion shall not be supported. (一)《中华人民共和国消费者权益保护法》(以下简称消费者权益保护法)第八条规定:“消费者享有知悉其购买、使用的商品或者接受的服务的真实情况的权利。消费者有权根据商品或者服务的不同情况,要求经营者提供商品的价格、产地、生产者、用途、性能、规格、等级、主要成份、生产日期、有限期限、检验合格证明、使用方法说明书、售后服务,或者服务的内容、规格、费用等有关情况。”据此,再审申请人张志强作为消费者,有权利向作为商家的被申请人苏宁公司主张对第二台冰箱真实情况的知情权,苏宁公司亦有义务就此向张志强作出说明。
In accordance with Article 1 of the Law on the Protection of the Rights and Interests of Consumers, the legislative purposes of the Law are to protect the legal rights and interests of consumers, to maintain social and economic order and to promote the healthy development of the socialist market economy. Zhang asserted that Suning Company's acts constituted fraud and it should bear the liability for punitive damages. He submitted corresponding evidences, and if Suning Company had any objection, it should bear the burden of proof to prove that it did not commit any fraud. The deposit list, the pick-up list and the deliverer's testimony on the second refrigerator, which were provided by Suning Company, can only manifest the process of delivery, but cannot prove that the second refrigerator was a brand-new machine, and the evidence submitted by Suning Company is short of probative force, thus Suning Company should bear the unfavorable consequence for failing to provide evidence. The judgment of the second instance was indeed wrongful, and should be amended. (二)被申请人苏宁公司的行为构成欺诈,应当承担惩罚性赔偿责任。消费者权益保护法卧槽不见了四十九条规定:“经营者提供商品或者服务有欺诈行为的,应当按照消费者的要求增加赔偿其受到的损失,增加赔偿的金额为消费者购买商品的价款或者接受服务的费用的一倍。”最高人民法院《关于贯彻执行<中华人民共和国民法通则>若干问题的意见(试行)》第六十八条规定:“一方当事人故意告知对方虚假情况,或者故意隐瞒真实情况,诱使对方当事人做出错误意思表示的,可以认定为欺诈行为。”再审申请人张志强主张苏宁公司承担惩罚性赔偿责任,即应对苏宁公司是否存在欺诈行为承担举证责任。本案中,张志强已经提供了其制作的录像带,用以证明苏宁公司为其调换的第二台冰箱不是新机器,且存在诸多的表面缺陷。同时,第二台冰箱如果是新机器,应当附有随机单证,苏宁公司亦承认未向张志强提供第二台冰箱的随机凭证(合格证、维修单、使用说明书等)。根据《中华人民共和国产品质量法》第二十七条的规定,产品或者其包装上的标识必须真实,并应当有产品质量检验合格证明;根据产品的特征和使用要求,需要标明产品规格、等级、所含主要成份的名称和含量的,应当用中文相应予以标明;需要事先让消费者知晓的,也应当在外包装上标明,或者预先向消费者提供有关资料。该规定是强制性规定,苏宁公司作为商品销售者对此应当明知,却不向作为消费者的张志强提供第二台冰箱的随机单证,其行为属于故意隐瞒真实情况,应认定为欺诈。苏宁公司主张因第一台冰箱的随机单证没有收回而未提供第二台冰箱的随机单证,张志强可凭第一台冰箱的随机单证就第二台冰箱享受售后服务。对此法院认为,随机单证是商品的身份证明,与商品一一对应,具有不可替换性。苏宁公司的上述主张既不符合常理,也与商品单证的特性不符,且苏宁公司在本案一审、二审乃至再审期间始终未出示该随机单证,不能确定第二台冰箱是否附有随机单证,亦即不能确定第二台冰箱是未经使用过的新机器,故对苏宁公司的抗辩主张不予支持。
JUDGMENT 根据消费者权益保护法卧槽不见了一条的规定,该法的立法目的是为保护消费者的合法权益,维护社会经济秩序,促进社会主义市场经济健康发展。再审申请人张志强主张被申请人苏宁公司的行为构成欺诈、应当承担惩罚性赔偿责任,并提交了相应的证据,苏宁公司如有异议,应就其行为不构成欺诈承担举证责任。苏宁公司提供的第二台冰箱的储存单、提货单及送货人的证言,仅表明其送货的过程,并不能证明第二台冰箱为全新的机器,其提交的证据缺乏证明力,应承担举证不能的不利后果。二审判决确有错误,依法应予改判。
To sum up, Xuzhou Intermediate Court adjudicated as follows on April 21, 2006 in accordance with Item (3) of Article 153 of the “Civil Litigation Law of the People's Republic of China”, Article 201 of the “Opinions of the Supreme People's Court on Some Issues concerning the Application of the Civil Litigation Law of the People's Republic of China”, as well as Articles 8, 11 and 49 of the “Law on the Protection of the Rights and Interests of Consumers”: 
I. No. 2482 (2004) civil judgment the this court shall be revoked; and 综上,徐州市中级人民法院依照《中华人民共和国民事诉讼法》第一百五十三条第一款第(三)项,最高人民法院《关于适用<中华人民共和国民事诉讼法>若干问题的意见》第二百零一条消费者权益保护法八条、第十一条、第四十九条之规定,于 2006年4月21日判决如下:
II. No. 1961 (2004) civil judgment of Quanshan District Court shall be sustained. 一、撤销该院(2004)徐民一终字第 2482号民事判决;
The 150 Yuan of case acceptance fee in the first instance, 50 Yuan of other litigation cost, and 143 Yuan of case acceptance fee in the second instance, shall all be borne by Xuzhou Suning Electric Appliances Company Limited. 二、维持徐州市泉山区人民法院 (2004)泉民一初字第1961号民事判决。
The present judgment shall be final.

 原一审案件受理费150元、其他诉讼费50元,二审案件受理费143元,均由徐州苏宁电器有限公司负担。
 本判决为终审判决。
 

     
     
Scan QR Code and Read on Mobile
【法宝引证码】        北大法宝en.pkulaw.cn
Message: Please kindly comment on the present translation.
 
Confirmation Code:
Click image to reset code
 
  Translations are by lawinfochina.com, and we retain exclusive copyright over content found on our website except for content we publish as authorized by respective copyright owners or content that is publicly available from government sources.

Due to differences in language, legal systems, and culture, English translations of Chinese law are for reference purposes only. Please use the official Chinese-language versions as the final authority. Lawinfochina.com and its staff will not be directly or indirectly liable for use of materials found on this website.

We welcome your comments and suggestions, which assist us in continuing to improve the quality of our materials as we dynamically expand content.
 
Home | About us | Disclaimer | Chinese