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深圳经济特区实施《中华人民共和国消费者权益保护法》办法(修正) Measures of Shenzhen Special Economic Zone on Implementing the Law of the People’s Republic of China on the Protection of the Rights and Interests of Consumers

2006-05-14 17:38   我要纠错 | 打印 | 收藏 | | |

(Originally adopted at the Twelfth Meeting of the Standing Committee of the Second Shenzhen Municipal People’s Congress on December 26, 1996, as revised in accordance with the Resolution on Revision of Articles 36 and 37 of Measures of Shenzhen Special Economic Zone on Implementing the Law of the People’s Republic of China on the Protection of the Rights and Interests of Consumers of the Nineteenth Meeting of the Standing Committee of the Second Shenzhen Municipal People’s Congress on December 17, 1997.)
颁布日期:19971217  实施日期:19971217  颁布单位:深圳市人大常委会

  Chapter Ⅰ General Provisions

  Article 1 In order to implement 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”), practically protect the lawful rights and interests of consumers, these measures are formulated in accordance with the actual circumstances of Shenzhen Special Economic Zone (hereinafter referred to as Special Zone).

  Article 2 “Consumers” referred to in these measures means the individuals and units that purchase or use the commodities or receive the services for personal consumption.

  “Operators” referred to in these measures means the units and individuals that manufacture or sell the commodities or provide services for consumers.

  Article 3 The Shenzhen Municipal People’s Government shall organize to implement these measures.

  For the important matters involving the protection of the rights and interests of consumers, the municipal and district people’s government (hereinafter referred to as the municipal and district government) shall periodically convene conferences, organize, coordinate, supervise and urge relevant administrative departments to perfect the work of protecting the rights and interests of consumers.

  Article 4 The administrative department of industry and commerce and other administrative departments of the municipal government shall exercise their functions and powers to protect the lawful rights and interests of consumers within the scope of their respective powers and duties according to laws, regulations and these measures.

  Article 5 The consumers’ committees of Shenzhen Municipality and its districts (hereinafter referred to as the consumers’ committees) carry out the social supervision over the commodities and services.

  The governments at all levels shall support the consumers’ committees to exercise functions and powers according to law. The funds used by the municipal or district governments to protect the rights and interests of consumers shall be brought into the financial budget respectively.

  Article 6 The government shall encourage and support all the organizations and individuals to supervise the behaviors that damage the lawful rights and interests of consumers.

  The mass medium shall reinforce the propaganda on the protection of the lawful rights and interests of consumers, and disclose as well as criticize the behaviors that damage the lawful rights and interests of consumers.

  Chapter Ⅱ Rights of the Consumers and Obligations of the Operators

  Article 7 The consumers shall enjoy all the rights stipulated in the law on the protection of the rights and interests of consumers and other relevant laws, regulations and these measures.

  Article 8 When providing commodities or services, the operators shall perform the duties in accordance with the law on the protection of the rights and interests of consumers and other relevant laws, regulations and these measures.

  Article 9 The operators shall observe the principles of fairness, voluntariness and good faith, and shall not have the following behaviors:

  (1) forcing the consumers to purchase commodities or accept services with the means of violence, menace, etc.;

  (2) violating the consumers’ will to engage in tied sale or add other conditions to sale of commodities;

  (3) failing to clearly indicate the business scope and service standard;

  (4) other behaviors prohibited by laws and regulations.

  Article 10 For the commodities that have been guaranteed for repair, replacement and refund (hereinafter referred to as guarantee of repair, replacement and refund) according to the provisions of the State or the agreements between the operators and consumers, the operators shall perform their duties according to provisions or agreements.

  Article 11 If the commodities that are guaranteed for repair, replacement and refund don’t accord with the provisions or agreements on quality, the operators shall perform the following duties according to the consumers’ requirements:

  (1) if the circumstances accord with the conditions of refund and the consumers require to refund, the operators shall refund and shall not charge any fees;

  (2) if the operators fail to repair within the stipulated or agreed time limit, they shall provide the commodities of the same kind for the consumers to use in the repair period;

  (3) The operators shall bear the freight, charge for loss of working time and other reasonable fees that happened to the consumers because of the repair, replacement and refund.

  Article 12 For the commodities and services that are not guaranteed for repair, replacement and refund, if they don’t accord with the provisions or agreements on quality, the consumers have rights to require to repair, replace, refund and rework, as well as make up the deficiency of commodity amount and refund the payments for goods and services, and the operators shall satisfy the requirements according to the stipulated or agreed time limit.

  “The stipulated or agreed time limit” referred to in the preceding paragraph means:

  (1) the time limit stipulated in laws and regulations;

  (2) the time limit agreed between the operators and consumers, but the time limits that the operators agree with the consumers in the form of standard contract , shop notice and so on shall not be less than 90 days;

  (3) if the laws and regulations have no provisions and the operators have no agreements with the consumers, the time limit is 90 days;

  (4) the period of validity marked in the commodities.

  Article 13 For the commodities that accord with the conditions of refund and the consumers require to refund the commodity, if the prices have declined, the operators shall refund the payment at the original price, if the prices have gone up, the operators shall refund the payment at the new price except the laws and regulations stipulate or the parties agree others.

  Article 14 When the operators provide commodities or services, if the actual charges are higher than the expressed prices, the consumers have rights to pay at the expressed prices.

  Article 15 The operators engaging in service shall have the ground, techniques and equipments according to the stipulated conditions to protect the consumers’ personal health and safety.

  Article 16 The operators engaging in repairing trades shall ensure the repair quality according to the agreements. The operators shall not substitute the components of the repaired commodities stealthily, shall not misreport the recruitment and the replaced components of the repaired commodities, and shall not collect repair expenses recklessly from the consumers.

  The operators shall repair the commodities within the agreed periods. If the period is not agreed, the operators shall repair the commodities within 30 days. If the operators fail to repair the commodities within the agreed or stipulated period, they shall refund the repair expenses.

  The repaired section of the repaired commodities shall be guaranteed for repair from the date when the repaired commodities are delivered for use. The period of guarantee for repair is 90 days. If the commodities cannot be normally used because the repaired section breaks down within the periods of guarantee for repair, the original repair units shall be responsible for fee repair or refund the repair expenses. The period of re-guarantee for repair shall be extended correspondingly from the date when the commodities have been repaired.

  Article 17 The operators engaging in processing industry shall ensure the quality of service according to the provisions, agreements or business practices, and shall not cheat in work and cut down materials, substitute the materials stealthily or misreport the recruitment and materials used.

  Article 18 The operators engaging in laundering and dyeing trade shall ensure the quality of service. The operators shall take the responsibilities of compensation if they misoperate or inappropriately store, thus cause the damage, color contamination and dyeing, loss and other accidents to the clothing,

  Article 19 The operators engaging in tourism shall go through relevant formalities on tourism for the consumers within the stipulated time limit, and shall not arbitrarily alter the agreed conditions of the tourist line, tourist scenery, board and lodging standard and so on, and shall not force or mislead the consumers to purchase commodities or accept other services.

  Article 20 If the operators sell commodities through mail orders, they shall inform the consumers of the purchase conditions, titles, persons in charge and ground of business.

  If the commodities received do not accord with the provisions on quality or the agreed conditions, the consumers accepting the mail orders may return the commodities or inform the operators in written of canceling the purchase contracts within 7 days from the date on receiving the commodities. The consumers need not to bear any fees except they damage the commodities.

  The consumers accepting the mail orders have rights to cancel the purchase contracts if they haven’t received the commodities within 90 days from the date on remit the payment.

  Article 21 The real estate operators shall strictly implement the laws, regulations and rules of the State and Special Zone relevant to the real estate development and management. They shall not mislead the consumers by false selling propaganda, shall not deliver the commercial housing that has not been checked and accepted for use, and shall not refuse to perform the duties of management, maintenance and upkeep stipulated in the laws, regulations and rules or agreed in the contracts.

  The operators engaging in advance sale of real estate shall indicate the standard unit floorage and contributed public areas of the house in the real estate purchase contract. After the houses have been completed, the areas shall accord with each content of the real estate purchase contracts, otherwise the consumers have rights to cancel the contracts or require to refund the over charged prices for the houses sold in advance.

  The sale description of the house issued by the operators shall include the tables of the unit floorage and contributed public areas as well as the layout charts; The advance sale advertisements of the real estate shall include the houses’ sites, architectural structures, completing and delivering times and prices, etc.

  Chapter Ⅲ Consumers’ Organizations

  Article 22 The consumers’ committees shall perform the following functions and powers, besides those stipulated in Article 32 of the law on the protection of the rights and interests of consumers:

  (1) to investigate, compare, test and analyze the quality, price, after-sale service of the commodities and the opinions of consumers, and public the outcomes;

  (2) to require the operators to take necessary measures to protect the rights and interests of consumers, and supervise relevant trade organizations in drafting the contents of the form contracts;

  (3) other functions and powers stipulated in laws and regulations.

  Article 23 For the matters about the protection of consumers’ rights and interests, the consumers’ committees and other consumers’ organizations may supervise the public services, enterprises and other monopolistic operators.

  Article 24 The consumers’ committees and other consumers’ organizations shall not undertake commodity operation and commercial service, and shall not recommend commodities and services to the society with the aim of seeking profits.

  The operators shall not adduce the contents of the reports on investigation, test, comparison and analysis issued by the consumers’ committees in the commercial advertising.

  Chapter Ⅳ Settlements of Disputes

  Article 25 If the consumers have disputes on their rights and interests with the operators, they may settle them through the following ways:

  (1) to consult and reconcile with the operators;

  (2) to apply for conciliation to the consumers’ committees;

  (3) to appeal to relevant administrative departments;

  (4) to apply for arbitration to the arbitral agencies according to the arbitral agreements concluded with the operators or file lawsuits to people’s courts.

  Article 26 If the consumers complain to the consumers’ committees when they have disputes on their rights and interests with the operators, the consumers’ committees shall make decisions of accepting or not accepting within 7 days from receipt of the complaint.

  The consumers’ committees shall begin to investigate and conciliate within 7 days from the date on accepting the complaint.

  If the operators and consumers reached reconciliation agreements through conciliation, both parties shall implement the agreements.

  Article 27 If the consumers appeal to relevant administrative departments, relevant administrative departments shall make decisions of accepting or not accepting within 7 days from the date on receiving the appeal.

  After accepting the appeals, relevant administrative departments shall begin to investigate and deal with them within 7 days from the date on issuing the notices of acceptance and make settlement decisions within 30 days. In special circumstances, with an approval of the chief administrative officers of relevant administrative departments, the periods may be extended, but the time extended shall not exceed 30 days.

  For the complaints that the consumers’ committees have received, relevant administrative departments shall give answers within 15 days from the date on receiving the complaint, and notice the consumers’ committees in writing.

  Article 28 If the consumers apply for arbitration to arbitral agencies according to the arbitral agreements agreed with the operators, the arbitral agencies shall make awards timely. The consumers and operators shall implement the awards. If one party fails to implement delinquently, the other party may apply for coercive execution to the people’s court that has jurisdiction.

  Article 29 If the consumers and operators have disputes on the qualities of commodities, they can send them to the statutory testing centers for test. The test and appraisal fees shall be paid in advance by the operators and be born by the party responsible according to the outcomes of test and appraisal; If both parties have responsibilities, the fees shall be shared according to their separate responsibilities.

  If it is difficult to test or appraise, the operators shall provide evidences to prove that they have no faults; If they cannot provide such evidences, they shall bear responsibilities.

  Chapter Ⅴ Legal Responsibilities

  Article 30 If the commodities or services provided by the operators damage the consumers’ rights and interests, the operators shall bear civil responsibilities according to the law on the protection of the rights and interests of consumers and other relevant laws and regulations as well as the provisions of these measures.

  Article 31 If the operators violate the provisions of Article 15 of these measures and cause damages to the consumers’ personal health, they shall take the responsibilities of compensation.

  Article 32 If the operators violate the provisions of Article 18 of these measures and cause losses to the consumers, the operators shall compensate according to the value, new or old degree and loss degree of the clothing.

  Article 33 If the operators violate the provisions of Articles 17 and 19 of these measures to provide services, they shall rework or refund the service fees according to consumers’ requirements; If the operators cause losses to the consumers, they shall compensate the losses of the consumers.

  Article 34 If the operators violate the provisions of these measures to cheat the consumers with false or illicit means and have one of the following behaviors, they shall increase the compensation for the consumers’ losses according to the consumers’ requirements except bearing civil responsibilities stipulated in relevant laws and regulations to the consumers. The amount of the increased compensation is one time of the prices for the consumers to purchase commodities or the total fees for the consumers to accept services:

  (1) to sell the mingled or adulterated commodities, the fake commodities passed for genuine, the seconds sold at best quality prices, and the commodities with short weights;

  (2) to sell commodities by means of fraudulent declarations of prices;

  (3) to intentionally damage the installation kits of the repaired commodities or replace the installation kits that need not replacing;

  (4) to sell commodities with false descriptions of commodities, false standards of commodities, false entities and samples as well as false spot demonstrations and descriptions, etc;

  (5) to fail to sell commodities with the operators’ true names and labels;

  (6) to conduct deceptive sale induces;

  (7) to conduct false propagandas on commodities through broadcast, television, newspapers or periodicals and other mass media;

  (8) to cheat the consumers out of their advance payments;

  (9) to cheat the consumers with other false or illicit means.

  If the cheating behaviors are conducted by the manufacturers or other operators, the sellers shall compensate the consumers in advance; After compensation, the sellers may recover the losses according to law from the manufacturers or other operators who have conducted the cheating behaviors.

  Article 35 If the operators violate the provisions of these measures to provide commodities or services and cause the personal injury, disability and death of the consumers or other victims (hereinafter collectively called victims), the operators shall pay the expenses according to the following standards:

  (1) the medical expense, which is calculated according to the necessary expense for the victim to accept the therapy;

  (2) the nursing fee during the therapeutic period, which is calculated according to the expense needed to hire the local nursing personnel based on the nursing necessity of the victim during the therapeutic period;

  (3) the loss of incomes for absence from work, which is calculated according to the actual incomes that the victim loses for absence from work; If the incomes lost are difficult to calculate, it will be calculated based on the standard of annual average living expense of the resident in this city;

  (4) the expense for the tools of self-supporting living of the disabled, which is calculated according to the expense needed for the victim to purchase the popular appliances;

  (5) the living allowance of the disabled, which is more than 10 times but less than 20 times of the annual average living expense of the resident in this city, calculated according to the victim’s degree of disability;

  (6) the compensation money for disablement, which is more than 5 times but less than 10 times of the annual average living expense of the resident in this city, calculated according to the victim’s degree of disability;

  (7) the funeral expense, which is calculated according to the charging criterion of the basic service items that the funeral unit charges;

  (8) the compensation money for death, which is 20 times of the annual average living expense of the resident in this city;

  (9) the necessary living expense of the person who is maintained by the disabled or the dead during the lifetime, which is calculated according to the annual average living expense of the resident in this city. For the maintained person under 18 years old, the living expense shall be paid until he reaches the age of 18; For other persons without the ability to work, the living expenses shall be paid until they have bee maintained for 20 years.

  Each expenses stipulated in the proceeding paragraph shall be paid one time. If the laws and regulations have separate provisions, these provisions shall be observed.

  The annual average living expense of the resident in this city stipulated in these measures means the expense of personal consumption per person in the family of city and town inhabitant last year, which is proclaimed by the municipal statistic department.

  Article 36 If the operators violate the provisions of Article 9 of these measures and damage the rights and interests of consumers, the administrative department of industry and commerce or relevant administrative departments of the municipal government shall order them to rectify and impose the punishment of warning, confiscate the illegal gains, impose a fine more than one time but less than 5 times of the illegal gains; If there is no illegal gains, the operators shall be imposed a fine less than 10,000 yuan. The punishments above may be imposed separately or jointly.

  Article 37 If the operators violate the provisions of Articles 10,11,12,13 and 16 of these measures and have one of the following behaviors to the reasonable requirements filed by the consumers, the administrative department of industry and commerce of the municipal government shall order them to rectify, fulfill the requirements within the prescribed period and may impose a fine less than 10,000 yuan according to the circumstances; If the circumstances are serious, the administrative department of industry and commerce of the municipal government shall order them to stop business for rectification:

  (1) failing to answer within 5 days from the date on receiving the requirements of performing the duties filed by the consumers or the petition or complaint requiring to settle the disputes filed by the consumers’ committees;

  (2) failing to performing the duties that they shall perform within 3 days from the date on agreeing to perform or within the period agreed by the consumers;

  (3) failing to fulfill the reconciliation agreements agreed with the consumers;

  (4) failing to fulfill the mediation or settlement decisions made by the consumers’ committees, and also not filing lawsuits.

  Article 38 If the operators violate the provisions of Article 21 of these measures, the administrative department for real estate of the municipal government shall order them to rectify, and may impose punishments according to the provisions of laws and regulations of the State or Special Zone relevant to the real estate.

  Article 39 If the parties are not satisfied with the administrative punishments made by relevant administrative departments, they may file for reconsideration in written to the superior administrative departments of the administrative departments making the punishment decisions or the organization for administration review of the municipal government within 15 days from receipt of the notices of the punishment decision, or file a lawsuit directly to the people’ court within 15 days from receipt of the notices of the punishment decision.

  If the parties fail to apply for reconsideration or file lawsuits delinquently, and also fail to enforce the punishment decisions, the administrative department making the punishment decisions shall apply for coercive enforcement to the people’s courts.

  Article 40 If the administrative departments violate the provisions of Article 27 of these measures, prevaricating and dismissing the cases of the consumers’ complaints that are within the scope of their duties or constantly postponing with no decisive results, the same-level government or the superior administrative departments shall order them to accept and settle the cases within the time limit. For the people directly responsible or the persons mainly in charge, the units where they are or the superior administrative departments shall give administrative sanctions.

  Article 41 In case the operators violate the provisions of relevant laws, regulations and these measures to infringe on the rights and interests of consumers, if the circumstances constitute crimes, they shall be prosecuted the criminal responsibilities by the judicial department according to law.

  Article 42 If the operators obstruct the law enforcement personnel and the working staff of the consumers’ committees to perform the duties according to law with the means of threatening, beating or restricting freedom of the person, the public security organization shall impose punishments according to the provisions of the Regulations of the People’s Republic of China on Punishments in Public Order and Security Administration; If the circumstances constitute crimes, they shall be prosecuted criminal responsibilities by the judicial department according to law.

  Article 43 When the working staff of the administrative departments and the consumers’ committees settles the disputes on consumption, they shall be objective and impartial, and abide by the professional ethics. If they abuse the powers, neglect the duties, conduct irregularities for favoritism, they shall be given administrative sanctions according to the circumstances; If the circumstances constitute crimes, they shall be prosecuted criminal responsibilities by the judicial department according to law.

  Chapter Ⅵ Supplementary Provisions

  Article 44 The municipal government may enact concrete rules relevant to the protection of the consumers’ rights and interests according to these measures.

  Article 45 These measures shall go into effect as of the date on publication.

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