중국법상 소비자계약에서 사기의 구성요건

Abstract

In Chinese law, the significance of fraud in consumer contracts lies in the legal effect of punitive damages. The legal relation and legal consequences of consumption fraud are more exceptional than those in civil law. For a long time, there have been disputes regarding the constitutive elements of consumer fraud. Some argue that consumption fraud is a special institution in consumer law, and does not require complete conformity with the elements of fraud under civil law in terms of fault and causality. This article contends that when applying consumption fraud provision, the first step should be to determine from an objective business operator’s perspective whether the purchaser acquires goods or services “for daily consumption”. People who “intentionally purchase counterfeit goods” can be regarded as consumers. The fault of business operators in consumption fraud is limited to intention and does not encompass gross negligence. Nevertheless, the burden of proof and the standard of proof for fraud should be mitigated. Consumers are only required to present preliminary evidence of fraud. The causality element, i.e., consumers’ purchasing behavior resulting from fraud, shouldn’t be disregarded. The causality should be based on the standard of an ordinary rational consumer with general life experience and cognitive ability in specific consumption scenarios. Due to the absence of the element of causality, People who “intentionally purchase counterfeit goods” cannot claim punitive damages for consumption fraud.