Image source @Visual China
Text | Radar Finance, Author | Zhang Kaijing, Editor | Deep Sea
On the morning of May 9, the consumer civil public interest lawsuit brought by the Consumers Association of Henan Province on the incident of “Simba Live Streaming Ready-to-Eat Bird’s Nest” was officially opened.
It is understood that this case originated from the “Simba’s fake bird’s nest” incident in November 2020. Although Simba has recalled all the bird’s nest products sold in Xinxuan’s live broadcast room, and firstly assumed the responsibility for one refund, one compensation and three compensation, the Guangzhou market The regulatory authorities and Kuaishou also imposed fines and suspensions on Simba and the bird’s nest brand, but the incident was far from over.
In January 2022, the Henan Consumers Association notified the latest progress of the consumer civil public interest litigation on the incident. This is the first consumer civil public interest litigation case organized by a consumer association in Henan Province, and it has been accepted by the Zhengzhou Intermediate People’s Court in December 2021. The demand of Henan Consumers Association is to claim 79.714156 million yuan from a number of defendants including Kuaishou, Simba, and Rongyu Company (the brand owner of bird’s nest), and ask Kuaishou to permanently suspend Simba’s live broadcast account.
The latest news shows that at the end of the trial, the parties expressed their willingness to mediate under the auspices of the court. However, Wang Weiwei, a lawyer from Beijing Zhongwen Law Firm, believes that under multiple factors, the case will still experience a long wait before the final result is announced.
01 The fake bird’s nest case became the fuse, and the Henan Consumers Association requested a permanent ban on Simba’s account
In October 2020, a consumer posted a video on social platforms questioning Simba’s anchor “Shi Da Pretty”, saying that the bird’s nest purchased in his live broadcast room was really “sugar water”, which quickly attracted public attention.
At first, Simba and Shi Damei also hit back at the questioning, and once said that even if they were bankrupt, they would sue these people for slander. However, the test report released by professional anti-counterfeiter Wang Hai shows that the content of protein and amino acids in the bird’s nest products sold by the Simba team is 0, and the content of sialic acid, which is one of the important indicators of real bird’s nest, is only 0.014%.
After the release of “Real Hammer”, Simba issued an apology letter at the end of November, acknowledging that Mingzhi Bird’s Nest had exaggerated publicity in the sales process of the live broadcast room, and the product was actually a bird’s nest flavored drink.
At the same time as the apology, the Simba team also gave a solution, that is to recall all the bird’s nest products sold in Xinxuan’s live broadcast room, and assume the responsibility of refunding one and three compensations, with a total of 61.983 million yuan in compensation.
A month later, the Guangzhou Municipal Bureau of Supervision and Kuaishou both gave their results. Among them, the Guangzhou Municipal Bureau of Supervision intends to impose administrative penalties on Guangzhou Heyi Electronic Commerce Co., Ltd. (hereinafter referred to as “Heyi Company”), the founder of the live broadcast room involved, to stop the illegal behavior and fined 900,000 yuan. Guangzhou Rongyu Trading Co., Ltd. (hereinafter referred to as “Rongyu Company”), the main selling entity of the goods involved, was ordered to stop the illegal act and fined 2 million yuan.
Kuaishou E-commerce, on the other hand, removed the brand’s bird’s nest products from the whole site, and after the announcement of the punishment by the Guangzhou Municipal Bureau of Supervision, banned the accounts of “Daily Beautiful” and Simba for an additional 60 days; An e-commerce anchor was banned for 15 days, and the company was required to organize its e-commerce anchors to conduct relevant training and learning.
Although at that time, the details of the punishment for the market supervision department were still controversial. For example, Wang Hai once said that according to the relevant provisions of Article 140 of the “Criminal Law”, Simba should be investigated for criminal responsibility and sentenced to life imprisonment. Simba’s suspension and comeback, the outside world’s attention has come to an end.
However, the Henan Consumers Association obviously has different expectations for the outcome of the case.
In January 2022, it mentioned at the press conference that at the end of December 2020, it had received complaints from consumers about the sale of fake bird’s nests and suspected fraud in Xin Youzhi’s (Simba) live broadcast room. After investigation, Simba publicly admitted that the sales amount was about 15,495,760 yuan, but after the actual investigation, the total transaction amount of only the online flagship store has reached 19,928,539 yuan (only on September 17, 2020, from the day of the live broadcast to “Mingzhi”). “Total sales during the day the flagship store was closed). Among them, there were 2,124 transactions in Henan Province, with a total transaction amount of 601,410 yuan.
Accordingly, the Henan Consumers Association has issued a notice to Beijing Kuaishou Technology Co., Ltd., Heyi Company, Rongyu Company, Dazhou Xinyan (Xiamen) Biotechnology Co., Ltd. (hereinafter referred to as “Dazhou Xinyan”), Zhejiang Tmall Network Co., Ltd. (hereinafter referred to as “Dazhou Xinyan”). “Zhejiang Tmall”) and 6 defendants Xin Youzhi filed a consumer civil public interest lawsuit, requiring the 6 defendants to jointly bear the responsibility of refunding one compensation and three compensations, with a total refund amount of 79.714156 million yuan.
The Henan Consumers Association also requested Kuaishou to permanently suspend the live broadcast accounts opened by Xin Youzhi and Heyi Company, and Dazhou Xinyan Company to stop producing and selling Mingzhi’s “Bowl-flavored Instant Bird’s Nest” products.
Duan Xiaoming, director of the Legal and Theoretical Research Department of the Henan Provincial Consumers Association, once said in an interview with the media that the investigation and evidence collection of the case took nearly a year.
02 Is it eligible for public interest litigation?
However, there is no lack of doubts in the industry for the prosecution of the Henan Consumers Association.
Wang Zhibin, a lawyer from Shanghai Minglun Law Firm, believes that there is no legal obstacle for the Henan Consumers Association to initiate public interest litigation procedures. From the point of view of rationality, regardless of the size of the case and whether it is typical or not, the initiation of public interest litigation procedures by the Consumers Association is a kind of protection for the rights and interests of consumers.
However, lawyer Wang Weiwei said that according to the current Supreme Law’s opinion on consumer civil public interest litigation, there are three key points for the initiation of consumer civil public interest litigation: numerous consumers, unspecified, and damage to social and public interests. However, judging from the information currently known in the Simba case, the damaged consumers can be determined by retrieving transaction records, and the amount involved is clear, which belongs to the case of numerous but specific consumers. (Unlike the unclear number of consumers and losses caused by false advertising, etc.).
According to the court trial on May 9, this is also the argument of one of the defendants, Zhejiang Tmall. The lawyer representing Tmall said that if the Henan Consumers Association wants to sue on behalf of consumers who have not yet completed refunds, it must at least accept the relevant provisions of the “Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Consumer Civil Public Interest Litigation Cases”. Complaints, investigation and mediation of the complaints, and public interest litigation can only be filed after accepting the refund complaints from batches of consumers and collecting the corresponding contact and refund methods.
Xin Youzhi stated in his “Civil Reply” that he had sent people to communicate with the Henan Consumers Association many times, hoping that the Henan Consumers Association would provide those who purchased “Mingzhi Bird’s Nest” products through the link of the live broadcast room of Shidamei, and failed to obtain the first move. The list of consumers who have refunded the compensation so that Heyi Company can fulfill its promise of compensation, but up to now, the Henan Consumers Association has not been able to provide it.
Wang Weiwei also pointed out that the more prominent feature of public interest litigation is that it is preventive, and it is more like a means to protect social public interests from further damage in the future. The Simba side has taken measures in a timely manner, and there is no danger that the public interests of the society will continue to be damaged.
Similar to Wang Weiwei, there is also a view that many anchors and stars of the same bird’s nest have also sold them without refunding them, but this public interest lawsuit only targets Simba and does not defend the rights of these consumers, which also deviates from the protection of rights. original intention.
Radar Finance noticed that relevant statistics show that the live broadcast celebrities, hosts, and performers involved in promoting the same product as Simba’s bird’s nest include Jin Ming, Zhu Dan, Wang Yaoqing, Chen Haomin, Chen Yiru, Guo Congming, Ma Ke, Yu Da Gongzi, Li Xiang, Ye Yiqian, etc., and even Liu Genghong, who has exploded recently. Judging from the online live broadcast clips, the publicity and selling points used in these live broadcast rooms are roughly the same as those in Xinxuan’s live broadcast room.
03 Industry insiders said that Yongfeng’s punishment demands were too heavy, and Kuaishou Tmall said it had fulfilled its legal obligations
In the opinion of many people in the industry, the penalty appeal for banning Simba’s account is too serious.
Wang Zhibin said that the Consumers Association is not a law enforcement agency. It can file lawsuits on behalf of consumers about disputes over consumer rights. The claims should be related to the specific rights and interests of consumers, and should not interfere with the business behavior of enterprises. Asking a third-party platform to close an enterprise’s account is suspected of interfering with the third-party platform and the daily operations of the enterprise involved.
Wang Weiwei pointed out: “I think the petition to permanently ban Simba and other Kuaishou accounts is more of a symbolic petition. First, there is a relative lack of legal and regulatory support, and second, Simba himself has already received the ban penalty. , and there is no reason to punish him again on the basis of the principle of not punishing twice for one incident. Third, after the incident of the Simba team selling fakes, the punishment they received has already achieved a good social education effect, and then they will be punished through permanent bans and other methods. Punishment is unnecessary.”
Li Yongjian, a researcher at the Institute of Financial and Economic Strategy of the Chinese Academy of Social Sciences, mentioned in the recently published article “Promoting the Standardized Development of Live Streaming E-commerce to Promote Continued Recovery of Consumption”, “For anchors who have actively fulfilled their responsibility to protect consumer rights, more Tolerance should not be killed with a single stick, let alone blindly suppressed in the name of consumer rights protection to avoid the ‘chilling effect’.”
“Compared with repeated accountability, it is more important to coordinate the establishment of a comprehensive consumer protection mechanism.” Li Yong insisted.
It is worth mentioning that the Henan Consumers Association also requested the court in the indictment to determine that Kuaishou and Tmall platforms bear joint and several liability for the sale of counterfeit goods.
In this regard, the attorneys for Kuaishou and Tmall both stated that they have fulfilled their legal obligations. After the bird’s nest incident, the relevant accounts were banned and related products were removed from the shelves.
Wang Weiwei believes that it is far-fetched for the Henan Consumers Association to use Kuaishou, Heyi Company, Rongyu Company, and Dazhou Xinyan as the operator complex corresponding to the consumers in this case in the indictment.
“The platform’s supervisory responsibility should mainly consider whether it has fulfilled its prudent supervisory responsibility for the behavior of live broadcasters selling fake products, and whether it has taken reasonable and effective measures to stop the fake sales in a timely manner. Only by presenting evidence as a defendant can the platform understand its details and determine whether the platform should bear joint and several liability.”
04 All parties are willing to accept mediation, lawyer: the case is difficult to get a result in the short term
Radar Finance has learned that Xin Xuan has given an advance compensation plan in November 2020, and Fang Rongyu, the brand of the bird’s nest incident, has had its business license revoked.
After the Henan Consumers Association announced the lawsuit against Simba’s fake bird’s nest incident, Xinxuan Group announced the latest compensation progress. As of January 14, 2022, the company has paid a total of 41.439216 million yuan to consumers, and the compensation plan is still valid.
One of the demands of the Henan Consumers Association is that the four parties jointly bear the total amount of compensation of 79.714156 million yuan. So, should the amount already paid be deducted from the subject matter of the lawsuit?
“The nearly 80 million claim amount claimed by the Henan Consumers Association must have the problem of double counting. The specific compensation amount needs to be clarified through the evidence of both parties during the litigation process. The final amount is unlikely to be supported so high.” Wang Weiwei said.
However, Wang Zhibin said that the Consumers Association has the right to sue on behalf of consumers, and the right to sue will not be eliminated due to the company’s active compensation. The amount of compensation that an enterprise voluntarily pays is directed to specific consumers, and its liability to other consumers cannot be reduced or exempted because some specific consumers have been compensated.
It should be pointed out that the 79.71 million yuan claimed by the Henan Consumers Association and the 41.43 million yuan that Simba has paid are not the only reference standards.
After the fake bird’s nest incident, Xinxuan Group filed an arbitration with the Guangzhou Arbitration Commission against Rongyu Company for deliberately misleading Xinxuan. In June 2021, the Guangzhou Arbitration Commission issued a ruling confirming that Rongyu Company deliberately misled Xin Xuan to make misleading publicity behaviors, and that before December 16, 2020, 30.355459 million yuan in the refund of the “bird’s nest incident” was paid by Rongyu. Yu company undertakes.
This also means that, in the opinion of the Guangzhou Arbitration Commission, Heyi Company and Simba have no intention to deceive consumers subjectively. In this trial, Simba’s lawyer pointed out that the advance compensation commitment of one refund and three compensation is a voluntary act responsible for consumers, and Heyi company cannot be recognized as a matter of course because Heyi company voluntarily fulfills its responsibility for advance compensation. should be liable for compensation.
Regarding the follow-up progress of the case, Wang Weiwei believes that the court trial may not be able to give an effective judgment result in a short period of time. “In the time of many cases now, the trial can be suspended and postponed as soon as it is said that there is an epidemic. It would be good to have the result before the end of the year.”
In response to the media reports that “all parties are willing to mediate under the auspices of the court” after the trial on May 9, Wang Weiwei said that because the case itself is complicated and difficult to adjudicate, he has been talking about mediation, but this will not affect the case. Expected to drag on for a long time.
Radar Finance noticed that due to the fact that the current Consumer Protection Law does not have clear regulations on the nature, positioning, and operational guarantee of consumer associations, public interest litigation in the consumer field is not only difficult to file, but also takes a relatively long time. For example, the first public interest litigation of the China Consumers Association took three years.
In this context, the confrontation between Henan Consumers Association and Simba and other parties may have just begun.
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Related events
- Henan Consumers Association v. Simba Bird’s Nest case opens today 2022-05-10
- Henan Consumers Association filed a consumer civil public interest lawsuit against Simba: more than 79.71 million yuan in compensation 2022-01-14
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