I bought 12 bottles of fake Maotai online, should JD.com compensate for every fake one?

Tech 2023-05-21 11:27:49 Source: Network

Shopping on online and e-commerce platforms is now a common occurrence, but the internet is not an illegal place. Selling counterfeit goods online also carries legal and compensation responsibilities

Shopping on online and e-commerce platforms is now a common occurrence, but the internet is not an illegal place. Selling counterfeit goods online also carries legal and compensation responsibilities. However, Mr. Xin from Nan'an District recently encountered a troublesome situation. He bought 12 bottles of fake Maotai liquor at JD Mall and demanded ten times compensation, but he lost one case after another in the first and second trials. What is this?

According to Mr. Xin, in early August 2021, when he was browsing and shopping in the "Jingdong Mall", he accidentally entered a dialog box through an advertising link. The other party claimed to be a salesperson of Jingbangda Company. During the dialogue, the two parties confirmed that Mr. Xin would buy 2 cases and 12 bottles of Kweichow Moutai liquor with 53 degrees, 500 milliliters and Feitian rings. In the conversation, the salesperson also promised to compensate ten for one fake, and he emphasized that payment on delivery can be made, but the payment can only be made to Jingbang Da Company and cannot be paid to individuals.

Mr. Xin immediately searched for "Jingbang Da" on the JD online platform and found that Beijing Jingbang Da Trading Co., Ltd. is a self operated express delivery company of JD Mall. At the same time, JD Mall also opened a flagship store of JD's self operated sauce flavored Maotai liquor. Mr. Xin firmly believed in this and immediately placed an order to purchase.

On August 5, 2021, Mr. Xin received two pieces of 53 degree Guizhou Feitian Maotai liquor from JD Mall Express at home, totaling 12 bottles. The JD Express tracking number was "JDX005424036432", and the sender was Manager Chen. The mailing address was Warehouse 7, Block B, Wanke Hanyang International, Yongfeng Street, Hanyang District, Wuhan City, Hubei Province. The transaction number of the goods was completed

Mr. Xin is very happy to have bought two boxes of Maotai liquor at such a favorable price at JD.com. A week later, when a friend had a birthday, Mr. Xin enthusiastically brought two bottles of Maotai wine to congratulate him. However, as soon as the first glass of wine was consumed, the whole table realized that the taste was not right and unanimously believed that it was fake Maotai wine.

Mr. Xin lost face and was very embarrassed. Therefore, he filed a complaint with the Market Supervision and Administration Bureau of Nan'an District, Chongqing, and was entrusted by the law enforcement team of the bureau to conduct an appraisal. On September 28, 2021, Kweichow Moutai Liquor Co., Ltd. issued the "Product Identification (Identification) Form" (Qian Mao Yi (Jian) No. 0001630), and affixed the official seal. It was identified that "through appearance identification (identification), the samples sent for identification do not conform to the characteristics of the external packaging of our factory products, which are not produced by our company and belong to products with counterfeit registered trademarks."

In January 2022, after multiple unsuccessful negotiations between Mr. Xin and the salesperson of Jingbang Da Company, he filed a lawsuit with the People's Court of Yuzhong District, demanding Jingbang Da Company to "compensate ten for one fake", compensate 90000 yuan and interest for the same period. After the court heard the case, the lawyer appointed by Jingbang Da Company argued that the company did not have a sales contract relationship with Mr. Xin. Jingbang Da Company was only a logistics enterprise that provided payment collection services to users while carrying the goods. The actual seller of this batch of goods was a person named "Yang Wei".

On July 7, 2022, the Yuzhong District Court ruled that Mr. Xin's lawsuit was rejected because he failed to provide sufficient evidence to prove that Jingbangda Company was the seller of the sales contract involved in the case.

I have a 'JD Express order' and a transfer voucher for the payment of 9000 yuan from JD. How can I not prove the validity of the sales contract? Jingbang Da Company requires me to pursue Yang Wei's legal responsibility, but I have no business relationship with Yang Wei. Even if we pursue it, it should be Jingbang Da Company's own business

Mr. Xin was very dissatisfied with this and filed an appeal to the Fifth Intermediate People's Court of Chongqing in September 2022. He not only explicitly refused to add Yang Wei as the defendant as a third party, but also refused court mediation.

On November 1, 2022, the court ruled in the second instance that although Mr. Xin submitted logistics courier information and tracking number, he did not provide detailed order information and logistics process to prove that the seller of the goods was Jingbang Da Company. And Jingbangda Company proved that the sender was not the company. In addition, although Mr. Xin proved that he had paid 9000 yuan to Jingbang Da Company, Jingbang Da Company also proved to the court that the 9000 yuan received for the order had been transferred and paid to the outsider Yang Wei through Hu Beijing Bangda Supply Chain Technology Co., Ltd. Therefore, the evidence presented by Mr. Xin cannot prove that the goods involved in this case were sold to him by Jingbang Da Company, and the court rejected Mr. Xin's lawsuit request.

Mr. Xin has been hit hard by his consecutive failures in the first and second trials. At the same time, he also found that all the original shopping links on JD.com have disappeared, and order information and logistics information have been deleted, making it impossible to search now.

As long as you search online, you can see that there are many precedents in the country. As long as there are orders, courier information, and payment vouchers for online shopping, it can prove that the buying and selling relationship is established and there is no need for a buying and selling contract. Nowadays, a large number of consumers are shopping on JD Mall every day, and they do not have a buying and selling contract. Can their rights be protected in the future

Mr. Xin said that on April 19, 2023, he had received the "Notice of Acceptance of Civil Application Retrial Cases" from the Chongqing Higher People's Court, requesting a retrial of the case, but had not yet received the "Notice of Reexamination Filing".

Lawyer's statement

According to relevant laws and regulations such as the E-commerce Law, the Civil Code, and the Consumer Rights Protection Law, Mr. Xin's buying and selling relationship with JD Mall is legal and valid, and he should receive compensation in accordance with the law

Regarding Mr. Xin's civil lawsuit, on April 18, 2023, Lawyer Huang Xianzhong, Deputy Director of Chongqing Dingsheng Jiacheng Law Firm, believed that:, According to Article 49 of the Electronic Commerce Law of the People's Republic of China, "If the information of goods or services released by an e-commerce operator meets the offer conditions, and the user selects the goods or services and submits the order successfully, the contract is established." Mr. Xin's submission of the "JD Express Order" and "JD Payment 9000 Yuan Transfer Voucher" is sufficient to prove the success of the order, and the case involves the establishment of the Maotai liquor sales contract, The payment of 9000 yuan on delivery is evidence of the completion of the Maotai liquor sales contract involved in the case.

Secondly, according to Article 10 (2) of the "Several Provisions on Evidence in Civil Litigation" of the Supreme People's Court, "well-known facts require no proof from the parties." In this case, the "JD Express Order" and "JD Payment 9000 Transfer Voucher" submitted by the complainant to the court are well-known facts and are evidence of online shopping to prove the sales contract, without the complainant needing to provide further proof.

Thirdly, Beijing Jingbang Da Company believes that the outsider Yang Wei is the seller of the goods and requests the addition of Yang Wei as the defendant. However, all evidence indicates that this case involves the mailing of goods from the warehouse of Beijing Bangda Supply Chain Technology Co., Ltd., a subsidiary of Beijing Bangda Trading Co., Ltd., in Maotai liquor series. Mr. Xin paid the payment to Beijing Jingbang Da Company, which transferred the payment to Hu Jingbang Da Company. Hu Jingbang Da Company also transferred the payment to Yang Wei, an outsider. On the contrary, it confirms that the Maotai liquor sold by Beijing Jingbang Da Company to Mr. Xin through JD Logistics Express is the goods of its affiliated company. As for the distribution of payment, it is an internal relationship between Beijing Jingbang Da Company, Hu Jingbang Da Company, and Yang Wei, an outsider in the case, and has no legal relationship with Mr. Xin.

In addition, it is understood that according to Article 55, Paragraph 1 of the Consumer Rights Protection Law, if a business operator engages in fraudulent behavior in providing goods or services, it shall increase compensation for the losses suffered according to the consumer's request. The amount of compensation increased shall be three times the price of the consumer's purchase of the goods or the cost of receiving the services.

Meanwhile, according to Article 10 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Online Consumer Dispute Cases (1)", if a platform operator sells goods or provides services that harm the legitimate rights and interests of consumers, the compensation standard promised to consumers is higher than the relevant statutory compensation standard. If consumers claim that the platform operator compensates according to the promise, the people's court shall support it in accordance with the law.

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