Regulations of Henan Province on the Protection of Consumer Rights and Interests

 2018-05-27  70


Regulations of Henan Province on the Protection of Consumer Rights and Interests

  • Document NumberAnnouncement No.19 of the Standing Committee of the 11th People’s Congress of Henan Province
  • Area of Law Industrial and Commercial Management
  • Level of Authority Provincial Local Regulations
  • Date issued05-22-2009
  • Effective Date08-01-2009
  • Status Effective
  • Issuing Authority Henan Province



Regulations of Henan Province on the Protection of Consumer Rights and Interests
(Adopted at the 9th Meeting of the Standing Committee of the 11th People's Congress of Henan Province on May 22, 2009)
Chapter I General Provisions
Article 1 These Regulations are formulated in accordance with the Law of the People's Republic of China on the Protection of Consumer Rights and Interests (hereinafter referred to as the Law on the Protection of Consumer Rights and Interests) and the provisions of the relevant laws and regulations and in light of the actual conditions of this Province in order to protect the legitimate rights and interests of consumers.
Article 2 The legitimate rights and interests of consumers in purchasing and using commodities or receiving services for daily consumption in the administrative region of this Province shall be under the protection of these Regulations.
Business operators shall, in the supply of commodities or services to consumers, abide by these Regulations.
Article 3 The principle of combining State protection, social supervision and business operator self-discipline shall apply to the protection of consumers' legitimate rights and interests.
Article 4 Protecting consumer rights and interests shall be the common responsibility for the whole society.
The people's governments at all levels shall strengthen leadership over the protection of consumer rights and interests, organize, coordinate and urge the relevant departments to perform the functions of safeguarding the legitimate rights and interests of consumers according to law, support all the organizations and individuals in exercising supervision over the acts of harming the legitimate rights and interests of consumers.
The departments of the administration for industry and commerce, quality and technical supervision, price, health, food and drug supervision and others at all levels shall do a good job of safeguarding the legitimate rights and interests of consumers according to the provisions of laws and regulations, and in line with their respective functions.
The mass media shall make due publicity for the protection of the legitimate rights and interests of consumers effectively, and exercise supervision by public opinion over acts detrimental to the legitimate rights and interests of consumers.
Article 5 The people's governments and the relevant administrative departments thereof at or above the county level shall solicit the opinions and suggestions of consumer organizations and consumer representatives by means of public hearings or in other forms, when they make decisions of major importance on matters involving consumers' rights and interests such as water supply, power supply, gas supply, heat supply, telecommunication, cable television, transportation, education and property management.
Delegates to the public hearings shall include representatives from consumer organizations and consumers, and consumers' representatives shall not be less than one third of all the delegates thereto.
The consumer representative shall be determined under the principle of openness and fairness.
Article 6 The relevant industry associations shall establish and improve the industry self-regulating system, strengthen industry self-regulating and guide business operators to standardize their business operations. The industry rules they make shall reflect the protection of consumers' rights and interests, and shall not restrict consumers' rights or increase consumers' obligations.
Chapter II Rights and Obligations of Consumers
Article 7 Consumers shall enjoy the following rights:
(1) the right of free choice of commodities or services and the right to refuse any compulsory transactions, tie-in sale and imposed services;
(2) the right of access to such factual information as relating to the quality, prices, weights and measurements and functions of commodities and services;
(3) the right to obtain guaranteed quality, prices, health, safety and measurements in accordance with the State provisions, when they purchase commodities or receive services;
(4) the right to require business operators to provide receipts or service certificates and invoices when they purchase commodities or receive services;
(5) the right to demand repair, replacement, return or reduction of fees, when the commodities purchased or services received do not conform to the quality standards prescribed by the State or agreed between the two parties;
(6) the right to demand compensation when they suffer personal injuries or property damages in purchasing commodities or receiving services;
(7) the right to have their personal dignity, ethnic customs and habits respected in the course of purchasing and using commodities or receiving services; and
(8) the rights provided for by the Law on the Protection of Consumer Rights and Interests and other laws and regulations.
Article 8 Consumers shall have the right to exercise supervision over the quality of commodities, services as well as the work of the protection of consumer rights and interests.
Consumers shall have the right to inform on and take legal actions against the infringement upon consumer rights and interests, and the breach of law or negligence of duty on the part of State organs and their functionaries in the work of protecting consumer rights and interests, and have the right to raise criticism of, or proposals on the work of protecting consumer rights and interests.
Article 9 Consumers shall fulfill the following obligations when they exercise their rights:
(1) Respecting the work and legitimate rights and interests of business operators;
(2) Being careful not to damage the products when they are choosing from among them;
(3) Complying with the order of business services; and
(4) Complaints and reporting thereon shall be truthful and objective.
Chapter III Obligations of Business Operators
Article 10 Business operators shall fulfill the following obligations:
(1) Not to produce or sell products that fail to conform to human health safeguards, personal and property safety, or those that have been spoiled, decomposed and polluted beyond possible use (consumption), and may turn out to be injurious to personal and property safety; not to pass defective commodities off as good ones, not to pass fake commodities off as genuine ones, not to adulterate commodities, or not to pass substandard commodities off as standard ones; the defective commodities may be sold only when clear marks have been made on the commodities or the packages thereof; the services shall be remade or charges shall be either reduced or forgiven when they fail to meet the requirements prescribed by the State or those mutually agreed upon;
(2) Commodities produced or sold shall be attached with qualification certificates of inspection, user instructions in Chinese and the names and addresses of manufacturers according to the provisions of the State. The commodities with expiration date shall have manufacturing date, time limits of safety or the date of expiration indicated thereon, and other contents that shall be indicated according to laws and regulations;
(3) Commodities produced or sold shall use trademarks according to law, and passing off non-registered trademarks as registered ones or others' registered trademark as their own shall be forbidden;
(4) They may not sell imported commodities which have not been subjected to inspection and quarantine according to the pertinent State provisions;
(5) Commodity prices and rates of charges for services shall be in compliance with the relevant State provisions on price administration and easy-to-read price tags shall be attached thereto;
(6) Commodities produced or sold shall use qualified measuring instruments in order to guarantee the accuracy of measurement results;
(7) Advertisements of commodities and services shall be truthful and lawful. Business operators shall not post false advertisements or conduct other deceptive publicity;
(8) They may not force consumers to purchase commodities or accept services, and may not dominate the market, bid up prices up and down at will and extort consumers in their business activities;
(9) The commodities the on-the-spot testing and verification of which are demanded by consumers shall be tested and verified right on the spot;
(10) The quality and quantity and the timely performance of contracts shall be guaranteed in selling commodities or providing services by means of advance payments, mail order, TV home shopping, the Internet or the telephone;
(11) the “three guarantees” for products shall be fulfilled if repair, replacement and return of goods are guaranteed by the provisions of the State and those of this Province or as mutually agreed, and the services that should be provided anew according to the provisions of the State and those of this Province or as mutually agreed should be provided all over again;
(12) Respecting and supporting the consumer organizations to perform their duties according to law; and
(13) Other obligations as prescribed by the Law on the Protection of Consumer Rights and Interests and other laws and regulations.
Article 11 Where a consumer whose legitimate rights and interests are infringed upon as a result of the use of the substandard products demands compensation from the seller, the seller shall pay upfront compensation therefor. In case the liability is not on the seller, he shall have the right to recover the compensation from the party liable therefor.
Where the legitimate rights and interests of a consumer are infringed upon because the quality of the services is not in conformity with the provisions or the agreements, the service provider shall pay upfront compensation. In case the liability is not on the service provider, he shall have the right to recover the compensation from the party liable.
Article 12 The model clauses of contracts drawn by business operators shall be in conformity with the relevant provisions of the Contract Law of the People's Republic of China. In respect of the clauses of contracts which bear significantly on the consumers, the business operators shall intimate consumers thereof beforehand. Business operators may not evade responsibility or restrict the rights of consumers through the model clauses.
Where there are two or more kinds of interpretation of a model clause, the interpretation unfavorable to the party supplying the model clause shall prevail. Where a model clause comes into conflict with a non-model clause, the latter shall prevail.
Article 13 Where business operators provide consumption environment and venues, the business premises, service facilities, shop decorations and commodity displays, they shall comply with the requirements for the protection of the personal or property safety of consumers. With regard to the business premises or business items which may prove to be harmful to the personal or property safety of consumers, the business operators concerned shall fulfill supervision and management responsibilities by adopting corresponding protective measures and set up eye-catching warning signs.
Article 14 Where the products or services provided by business operators have serious defects and are likely to harm the personal or property safety of consumers, the business operators shall stop forthwith selling the commodities and providing the services, and report to the relevant departments thereon; where the products have been sold, the business operators shall notify the consumers thereof immediately, and recall such products for repair, replacement, return or destruction; where the services have been provided, the business operators shall take corresponding remedial measures immediately.
The costs of product recalls and service remedies shall be borne by the business operators.
Article 15 Business operators shall guarantee the quality of the prizes, gifts and free services provided through sale promotions, and they shall not be exempted from the responsibilities of repair, replacement, remanufacture, make-up for the short measurements of the commodities and compensation for losses.
Article 16 Business operators shall not require consumers to provide personal information which is not in any way related to consumption when they provide commodities or services.
Business operators may not disclose to third parties or use for other purposes the personal information and the relevant family information of consumers without their consent, including the consumers' names, sex, careers, ages, addresses, identification card numbers, educational background, contact details, marital status, places of work, income and property status, fingerprints, blood types and medical history of consumers. However, if otherwise specifically provided for by law and regulations, those provisions shall prevail.
Article 17 Real estate agents of commercial housing shall indicate the following conditions to consumers expressly, such as the exact location of the commercial housing, building structure, constructed area, internal space of a flat and shared built-up area, decoration standard, external environment, public facilities, supporting infrastructure, valuation method, ways of payment, conditions and date for putting to use and the issuance of the title deed.
Real estate agents of commercial housing shall not commit the following acts:
(1) Concluding contracts by deliberately concealing the fact of having not acquired a housing advance sale permit or providing deceptive housing advance sale permit;
(2) Deliberately concealing the fact that the house was mortgaged, sold or taken up for the compensation and resettlement for the former residents of the demolished houses;
(3) Mortgaging or selling commercial housing after the 6ale contract for the commercial housing has been concluded;
(4) Putting to use the commercial housing that has not been subjected to completion acceptance inspection or has failed to pass the completion acceptance inspection;
(5) Having put off the delivery in contravention of the agreement, and having, upon repeated urging, failed again to deliver within the reasonable period of three months;
(6) The major structure of housing is unqualified upon verification or has other quality problems which seriously affect the normal use of the house;
(7) The error of the actual area of the commercial housing exceeds three percent of the absolute value;
(8) Failing to obtain the real estate certificate for the house within the time limit prescribed in the contract due to the real estate agents' commission or omission;
(9) Unauthorized alterations of the plan and design have led to the inconsistency of the volume fraction, the quality of the commercial housing, the constructed areas, the structure, the direction of exposure and the number of floors with those laid down in the contract; or
(10) The external environment of the commercial housing and the other matching facilities thereof are inconsistent with the commitments of the business operators.
Where one of the circumstances as embodied in the preceding paragraphs (4),(2) and (3) has occurred, thus making it impossible for the contractual purposes to materialize, resulting in the invalidation or revocation and cancellation of the contract, the consumers may claim for the return, with interest, of the payments they already made for the purchase of the houses, recover damages, and may require the business operators of the commercial housing to undertake the liability of compensating up to 1 time the amounts they paid.
The operators of property management shall perform property service contracts and accept the supervision from the property owners and the property owners' committee. Where the business operators fail to provide services according to the contracts, the property owners' committee shall have the right to cancel the contracts according to law.
Article 18 Such public utilities enterprises as water supply, power supply, gas supply, heat supply, cable television, postal service, telecommunication, public transportation, the Internet and business operators with monopolistic status shall provide commodities and services according to the provisions of the State and the agreements with consumers, and abide by the following provisions:
(1) Not to require the consumers to buy commodities or accept services from business operators they designated themselves; not to make tie-in sales of commodities or providing paid services against the will of consumers;
(2) Not to raise the rates of fees or increase the number of items of charge without authorization; not to charge material costs where no material is provided, and the costs for the public facilities such as the laying of pipelines and cable lines shall be undertaken by the business operators, unless otherwise provided for by laws and regulations;
(3) Not to charge suspension fees when the consumers require that the services be suspended, unless resources are occupied and extra services are to be provided;
(4) Providing detailed lists of the items of charges when fees are charged;
(5) Not to set minimum amounts of use fees;
(6) Not to cease to supply commodities or provide services to other users because of some users' failure to pay fees on time;
(7) Notifying consumers,3 days in advance, of the planned maintenance and repair of the equipment and of the subsequent effect on the normal operation; however if otherwise specifically provided for by laws and regulations, those provisions shall prevail;
(8) Where contracts are concluded in the form of model clauses, sample contracts shall be submitted to the competent departments of industry administration for the record;
(9) Notifying the consumers, in advance, of the suspension of the supply of commodities and the provision of services due to the failure of the consumers to pay for the commodities and services thus provided and allowing them necessary time to get ready for the suspension; and
(10) Seeking out the reasons relating to the complaints of consumers about the problems of quality and measurements, and informing the consumers thereof within 7 days as of the date of receipt of the complaints; the increase in the measurements which has nothing to do with the consumers shall not constitute reason enough to require the consumers to pay further for the fees occurring thereof.
Article 19 Business operators of cleaning and dyeing shall enter into agreements with consumers about the items of service and requirements. Where clothes are spoiled, or its color is crossed or contaminated or lost, the business operators shall return the charges collected, and be liable for compensation according to law.
Article 20 Business operators of furnishing and internal decoration shall enter into agreements with consumers about the decoration materials, time limits of construction, construction quality, warranty term, expense settlement and liability for the non-performance of contracts. Where there are problems of the construction quality or the materials provided by the business operators are inconsistent with those laid down in the agreement, the business operators shall redo the work for free, rework or compensate the loss of the consumers.
The warranty term of furnishing and internal decoration projects shall not be shorter than two years.
Article 21 Vehicle dealers shall enter into agreements with consumers about such items as the maintenance, repair, replacement and compensation for losses, and establish maintenance service organizations with appropriate qualifications in consonance with the sales volumes. Where safety functional problems have, after sale, occurred in the main parts of the vehicle, the dealer shall carry out repairs for free, replacements or return of the sold vehicle according to the provisions of the State or the agreement with the consumer.
Article 22 Training service agencies of non-academic education shall faithfully inform the persons to be educated of the training objective, the education project, the curriculum provision, the faculty resources, the school location and the address of the teaching premises, the duration of study, the items and rates of charges, and the status of the accreditation body of certificates.
Where the business operators have committed any of the following acts, they shall refund the relevant fees and be liable for the compensation for losses:
(1) Deceiving the would-be trainees by false school admission brochures or advertisements;
(2) Increasing the rates of charges or items of charges without authorization;
(3) Failing to reach the education standard promised or failing to provide corresponding teaching equipment and facilities;
(4) Making the trainees terminate training ahead of schedule or put off the training course on unjustifiable excuses;
(5) The issued certificates are not recognized by the relevant organizations; or
(6) Other acts that infringe upon the trainees' legitimate rights and interests under the provisions of laws and regulations.
Article 23 Business operators of photography, videography, developing and printing and disc-carving shall keep consumers' films, negatives, magnetic tapes, memory cards and the data and information therein. After providing services according to the agreements with the consumers, the business operators shall return the relevant films, negatives, magnetic tapes, memory cards and the data and information therein to the consumers, and may not charge extra fees. The business operators shall not use the consumers' photos or other image data or provide them to others without consumers' written authorization.
Article 24 Tour operators shall conclude written tour contracts with consumers, defining the itineraries, tourist attractions, scheduling programs, room and board standard, transport, tourism prices, self-paying items, safety responsibilities and liabilities for breach of contract. Where tourist shopping is arranged, they shall expressly define the places, times and time limit of shopping in the contract with consumers, and shall not force consumers to go shopping.
The tour operators may not change the agreements in the contract without the consumers' consent Where the tour operators have, without authorization, added items such as tourist attractions, entertainments and shopping or raised the standards of room and board or the means of transport, they shall take care of the extra fees arising therefrom Where the tour operators have, without authorization, cut items agreed on in the contract or lowered the standards of room and board or the means of transport, they shall refund the corresponding fees and be liable for the breach of contracts.
Article 25 Business operators of food shall conform to the food safety conditions prescribed by laws and regulations, and provide food to consumers in accordance with the food safety standards and requirements.
Business operators of the catering industry shall respect consumers' right to choose in respect of the contents of service and service items. Where business operators provide food or services, they shall expressly inform the consumers of the prices, and may not add unfair restrictive conditions or charge unreasonable fees.
Article 26 Where social groups or other organizations and individuals recommend food to consumers in false advertisements, resulting in detriment to the consumers' legitimate rights and interests, they shall undertake joint liability with the business operators of food. Where there are other provisions in laws and regulations, those provisions shall prevail.
Article 27 Where business operators provide commodities by means of mail order, TV home shopping, Internet sales and telemarketing, they shall provide commodities according to the agreements, and faithfully inform the consumers of the names and detailed contact of the business operators. If they fail to fulfill the agreement, they shall, as demanded by the consumers, perform the agreement or refund the advance payments, and take care of the reasonable expenses of communications, mails, etc. paid by consumers.
Article 28 Business operators of intermediary services of talented human resources, labor services, marriage, overseas studies and real estate, etc., shall enter into agreements with consumers about the contents, expenses and the liabilities for breach of contracts. They shall not conduct intermediary services by means of fraud or coercion, or charge consumers for extra fees in contravention of the agreements. Where business operators fail to provide services in accordance with the agreements, they shall refund the service fees. If losses are caused to the consumers, the business operators shall undertake the compensation liabilities.
Article 29 Business operators engaging in repairing and processing shall provide commodities or services according to the provisions of the State or the agreements between both parties, deliver goods on schedule and guarantee the quality. Consumers shall, prior to the provision of services, be informed of such items as the components and spare parts, materials, prices and the time required for the repairing and processing.
Business operators shall not replace components and parts on the sly or replace the components and parts which should not have been replaced, or falsify the list of repaired items or falsely assert to have replaced components and parts.
Business operators shall issue warranties for the repaired parts and the term of warranty shall be not less than 60 days as of the date of delivering the repaired commodities to the consumers.
Article 30 Business operators of the beauty industry shall use materials and instruments that conform to the quality and hygienic standards of the State and expressly inform the consumers, beforehand, of the prices, the effect of the service, the things they should be careful about and the potential risks; where the effect of the service has failed to measures up to the effect as agreed upon due to the fault of the business operators, they shall, as demanded by the consumers, do it all over again for free or refund the money paid. If personal injury of consumers or other undesirable consequences have occurred, the business operators shall undertake corresponding legal liabilities.
One shall not engage in medical beauty services without the aptitudes or qualifications prescribed by the State.
Article 31 Business operators who rent counters or venues from others to engage in business operation shall indicate their own real names in the signs in easy-to-see positions. Business operators who lease their counters or venues shall indicate the location and scope of the counters and venues in eye-catching places.
Organizers of fairs and exhibitions and the providers of counters and sites shall urge exhibitors and users of the sites or the counters to indicate their own real names and logos.
Where business operators who rent counters, venues or facilities from others, or use others' business licenses have infringed upon the legitimate rights and interests of consumers, the providers of the counters, venues and facilities and lenders of business licenses shall undertake civil liabilities according to law, and shall not reject consumers' demands for compensation.
Where the division or merger of enterprises has infringed upon the legitimate rights and interests of consumers, the enterprises that inherit their rights and obligations shall be liable for compensating the consumers.
Article 32 Business operators shall establish rules and regulations such as cultured service, after-sale service and acceptance of consumer supervision, and strictly execute the rules and regulations.
Where differences and disputes have arisen between business operators and consumers, the commitments as contained in the rules and regulations and service conventions prescribed in the preceding paragraph shall serve as the basis on which the consumers are to protect their own rights.
Chapter IV Consumer Organization
Article 33 Consumer associations are public organizations formed according to law to exercise social supervision over commodities and services and to protect the legitimate rights and interests of consumers.
Consumer associations shall be established according to law in the administrative areas at or above the county level.
Consumer associations can establish complaint stations in the places where consumers are concentrated, such as villages and towns, neighborhoods, department stores and commodity trading markets in light of the actual needs, in order to facilitate consumers in coming up with complaints.
Article 34 Consumer associations at or above the county level shall implement the governing council system, and the council membership shall consist of persons recommended by the relevant departments, social organizations and consumer associations and consumer representatives.
Article 35 The consumer association shall perform the following functions;
(1) To provide consumption information and advisory services to consumers;
(2) To participate in supervision over or inspection of commodities and services conducted by the relevant administrative departments;
(3) To make reports, inquiries and suggestions to the relevant administrative departments, industry associations and business operators about issues relating to the legitimate rights and interests of consumers;
(4) To accept and hear complaints of consumers and carry out investigations, mediation and monitor the handling of the cases of complaint with respect to points of complaints;
(5) To submit cases to the appraisal department for appraisal where the quality of commodities or services is involved in relation to the complaints;
(6) To assist and support consumers whose legitimate rights and interests are injured in their legal proceedings;
(7) To put forward rectification suggestions to business operators and report to the relevant administrative departments when they detect serious defects in, and reckless charges on commodities or services provided; and
(8) To investigate, compare and analyze the quality, prices, after-sale service of commodities and services, consumers' opinions and complaints and report to the relevant departments thereon if necessary; to expose and criticize through the mass media and issue consumption warnings.
Article 36 The people's governments at all levels and the relevant departments thereof shall assist the consumer associations in the performance of their functions and provide them with the necessary working conditions.
In terms of inquires put forward by the consumer associations, the relevant administrative departments shall reply thereto within 15 days.
The relevant administrative departments may invite the consumer associations to participate in the supervision and inspection over commodities and services.
Where the consumer associations entrust the appraisal agencies to make appraisals, they shall produce written appraisal conclusions.
The mass media shall support the consumer associations in exposing and criticizing the acts which are detrimental to the legitimate rights and interests of consumers.
Article 37 Other consumer organizations shall be established according to the Regulations on the Administration of the Registration of Social Organizations, and conduct social supervision purporting to safeguard the legitimate rights and interests of consumers.
Article 38 Consumer associations and other consumer organizations may not be engaged in commodity transactions or profit-making services, and may not recommend to the society commodities or services for the purpose of making a profit. Meanwhile they shall not carry out such activities as evaluation, rewards and conferring honorary titles for the explicit or implicit purposes of making profits.
Chapter V Dispute Settlement
Article 39 Disputes between business operators and consumers in relation to consumer rights and interests (hereinafter referred to as rights and interests disputes) may be settled through the following approaches:
(1) To consult and conciliate with business operators;
(2) To request consumer associations for mediation;
(3) To make representations to the relevant administrative departments;
(4) To apply to the arbitration organs for arbitration according to the arbitral agreements with business operators; or
(5) To institute legal proceedings in the people's court.
Article 40 Where consumers resort to consultations with business operators to settle the rights and interests disputes, an immediate settlement shall be given for those disputes that can be settled right at the moment. Where the disputes defy an immediate settlement at that time, a reply shall be given within 7 days as of the date of receipt of the demand of the consumers.
Article 41 Where business operators and consumers have disputes over the quality of commodities, the business operators or the consumers shall send the commodities to the appraisal department for appraisal, and the appraisal fees shall be paid by the party requesting the appraisal. Where responsibility is explicitly clear, the fees shall be borne by the responsible party. Where responsibility is not explicitly clear, the fees shall be shared between the two parties.
Article 42 A consumer association shall investigate and mediate a consumer's complaint within 30 days as of the date of acceptance of the case.
Where the party which is complained against does not agree to mediation, or the mediation fails, the consumer association shall inform the consumer of other channels for dispute settlement.
Article 43 The following departments shall accept representations in respect of disputes over rights and interests between business operators and consumers:
(1) Representations relating to the quality, standard and measurements shall be accepted by the department for quality and technical supervision and the department of administration for industry and commerce;
(2) Representations relating to the piracy of other's registered trademarks, commodity packaging and decoration shall be accepted by the department of administration for industry and commerce;
(3) Representations relating to false or misleading advertisements shall be accepted by the department of administration for industry and commerce;
(4) Representations relating to prices shall be accepted by the competent department for price;
(5) Representations relating to safety issues in respect of food and cosmetics shall be accepted by the departments of health, quality and technical supervision, agriculture, food and drug administration and the department of administration for industry and commerce; and
(6) Representations relating the problems in respect of real estate, tourism and education and training shall be accepted by the departments for housing and urban-rural development, tourism, education, human resources and social security, etc.
Representations relating to other problems in relation to the purchases and use of commodities or the acceptance of services shall be accepted by the departments prescribed by laws and regulations.
Article 44 Where the content of representations cuts across the acceptance scopes of two or more administrative departments, the complainant may, on his own, choose one of them to handle his case. The relevant administrative departments shall render cooperation when it is needed.
The relevant department shall accept the representations when the case falls within its scope of acceptance, and it may not shirk its responsibility by shifting it to any other department; in relation to cases of representations which do not belong within its scope of acceptance, the department shall refer it to the relevant competent department or inform the complainant to appeal to the relevant competent department.
Where the department refuses to accept representations or make no answer, the complainant may apply for administrative reconsideration or bring an administrative lawsuit according to law.
Article 45 The relevant administrative departments shall decide whether to accept the representations or not within 5 days as of the date of receipt thereof and inform the complainant of the decision.
The relevant administrative departments shall mediate consumers' appeal in a timely manner if the facts are clear, the evidences are truthful and sufficient, rights and obligations are explicitly clear and the respondent agrees to mediation. The relevant administrative departments shall, in a timely manner, investigate the problem in dispute according to law and make a decision within 30 days if mediation is not agreed or fails.
Where the circumstances are complicated, the decision can be made within 60 days upon approval of the administrative department at the next higher level. If otherwise specifically provided for by law or regulations, these provisions shall prevail. Where examination and appraisal are needed during the investigation, the period for examination and appraisal shall not be included in the time limit of the handling process.
Article 46 Where the relevant administrative departments are satisfied through the investigation that the commodities or services provided by business operators have caused harm to the consumer's person and damages to his property, they shall urge the business operators to compensate the consumer's losses.
Article 47 Consumers shall provide receipts or service certificates or other relevant evidence when they complain or file representations.
Article 48 Where disputes over the rights and interests arise between consumers and business operators, the consumers shall claim compensation within 2 years as of the day when they get to know or should get to know the injury. If otherwise specifically provided for by law or regulations, these provisions shall prevail.
The provisions in the preceding paragraph shall not apply to cases where the business operators voluntarily take on the responsibility.
Chapter VI Legal Liabilities
Article 49 It is a fraudulent act if business operators intentionally provide consumers with false information or deliberately conceal the truth in order to entice consumers to purchase commodities or accept services.
Business operators engaged in any of the following fraudulent acts in supplying commodities or services shall, refund the charges to the consumers paid for commodities purchased or services accepted and pay compensation two times the cost paid by consumers. Where business operators promise to compensate more than two times, the promise shall be allowed to take effect:
(1) Selling adulterated commodities, or passing fake commodities off as genuine ones, passing old ones off as new ones, or passing defective commodities off as good ones, or passing substandard commodities off as standard ones;
(2) Selling underweight commodities or providing false services by false or other improper means;
(3) Selling “clearance goods”, “defective goods and rejects” and “substandard products” under the pretence of selling quality goods;
(4) Selling commodities or providing services by claiming to do so at so-called “clearance prices”, “markdown sale”, “minimum price” and “concessionary prices” or other deceptive prices;
(5) Selling commodities or providing services by means of false commodity descriptions, commodity standards and physical samples;
(6) Selling commodities or providing services without using their real names or logos;
(7) Conducting sales induction by employing others;
(8) Making false on-the-spot demonstrations or presentations;
(9) Making false publicity through the mass media such as broadcasting, television, movies, newspapers and periodicals and the Internet;
(10) Resorting to cheating for the purpose of getting advance payments from consumers;
(11) Resorting to mail orders, direct response advertising, Internet sales and telephone sales in order to deceptively obtain the price amounts without providing or without providing the commodities and services according to the agreements;
(12) Selling commodities by false “bonus sale” and “repayment of the principal sale”, etc; or
(13) Resorting to other fraudulent means to infringe upon consumers' legitimate rights and interests.
The offenders shall not be exonerated of the other liabilities provided for by laws and regulations after the business operators have compensated the consumers according to the provisions of the preceding paragraph.
Article 50 The term of the “three-guarantees” of commodities shall be extended according to the repair warranty, where the commodities belong to those under guaranteed repair, replacement and return according to the provisions of the State and those of this Province or the agreements between business operators and consumers, and are repaired, and business operators shall not charge repair fees if the dysfunction was not caused by the improper use or care on the part of the consumers. Where the repair of commodities takes more than 30 days, the damage from deferred use of the commodities shall be recovered at the rate of not less than 1 but not more than 10 percent of the prices of the commodities; in the case of the seasonable commodities in use, the damage shall be recovered at the rate of not less than 5 but not more than 10 percent of the prices of the commodities. Where the commodities still refuse to function normally after being repaired twice within the term of the warranty, the business operator shall replace or accept the return of the commodities; the prices paid for the commodities shall be refunded in full when the commodities are returned really because of quality problems.
Where the business operators still refuse to live up to their obligations under the “three-guarantees” after the consumers have negotiated with them two times in relation to the commodities mentioned in the preceding paragraph, the business operators shall compensate the consumers for their lost income due to their absence from work; what the staff members of the business operators say during the performance of their duties to the consumers with regard to the consumers complaints shall be deemed as the acts of the business operators.
In terms of the commodities that are under guaranteed repair, replacement and return and cannot be carried with consumers, the business operators shall be responsible for the reasonable costs of transportation, shipping fees, etc. that have to be paid.
Article 51 If business operators are found to have infringed upon the legitimate rights and interests of consumers under any of the following circumstances, they shall be punished in accordance with the provisions of the relevant laws and regulations; in the absenc'e of such provisions in the relevant laws or regulations, the departments of administration for industry and commerce shall order them to make corrections, and may, in light of the circumstances, punish the offenders with a warning or by confiscating their unlawful earnings, or both, of by imposing a fine not less than one time but not more than five times the value of the unlawful earnings; where there are no unlawful earnings, the offenders shall be punished with a fine of less than RMB 10,000 yuan each, and if the circumstances are serious, they shall be punished severely and be ordered to suspend business for rectification;
(1) Infringing upon the consumers' rights and interests by means of the model clauses of contracts, notices, statements, entrance hall bulletins;
(2) Obtaining the price amounts by cheating through mail orders, TV home shopping, Internet sales, telemarketing without providing the commodities or services or without providing the commodities or services in line with the agreements;
(3) Failing to fulfill the agreement when providing commodities or services on advance payments;
(4) Failing to indicate the true names and logos of the business operators when they rent counters or space of others, or failing to indicate the location or scope of counters or venues on the part of the lessors thereof;
(5) Failing to stop selling commodities with serious defects and stop providing services with drawbacks, or failing to take remedial measures such as recalling the commodities sold or services provided;
(6) Forcing consumers to provide personal information that has nothing to do with consumption or disclosing the information to third parties without the consumers' consent when providing commodities and services;
(7) Real estate agents of commercial housing violate the provisions of Article 17 of these Regulations;
(8) Business operators of public utilities and other operators having monopolistic status violate the provisions of Article 18 of these Regulations;
(9) Business operators of cleaning and dyeing violate the provisions of Article 19 of these Regulations;
(10) Business operators of furnishing and internal decoration violate the provisions of Article 20 of these Regulations;
(11) Vehicle dealers violate the provisions of Article 21 of these Regulations;
(12) Institutions of non-academic education and training services violate the provisions of Paragraph 2 of Article 22 of these Regulations;
(13) Tour operators violate the provisions of Article 24 of these Regulations;
(14) Business operators of food or catering services violate the provisions of Article 25 of these Regulations;
(15) Violating the provisions of Article 26 of these Regulations;
(16) Business operators of intermediary services violate the provisions of Article 28 of these Regulations;
(17) Business operators of repair services violate the provisions of Paragraph 2 of Article 29 of these Regulations; or
(18) Violating the provisions of Article 30 of these Regulations.
Article 52 Business operators who are found to be in any of the following circumstances shall be punished in accordance with the Law on the Protection of Consumer Rights and Interests:
(1) Providing service that fail to meet the requirements for the protection of personal and property safety;
(2) Compelling, or compelling under disguise, consumers to purchase commodities or accept services;
(3) Providing commodities or services with unreasonable additional conditions;
(4) Deliberately delaying or unreasonably refusing consumers' demand for repair, remaking, replacement, return of goods, making good the short commodity, refunding amounts of money paid for goods or services, or compensation for losses; or
(5) Counterfeiting or faking the names of other enterprises or others' specific business logos, or using the names or logos of the lessors.
Article 53 Business operators that are found to be in any of the following circumstances shall be punished by the department for quality and technical supervision or the department of administration for industry and commerce in accordance with the provisions in the Product Quality Law of the People's Republic of China within their respective extents of competency:
(1) Producing or selling commodities that fail to meet the requirements for safeguarding human health and protecting personal and property safety;
(2) Mixing foreign matters in or adulterating their commodities, or passing fake commodities off as genuine ones, or passing defective commodities off as good ones, or passing substandard commodities off as standard ones;
(3) Producing commodities which have been formally declared by the State to be eliminated, or selling commodities that are no longer effective or have deteriorated; or
(4) Forging the place of origin of commodities, forging or counterfeiting the names and addresses of other manufacturers, and forging or counterfeiting the authentication marks or the marks of brand-name and super quality products.
Article 54 Business operators that sell commodities without inspection or quarantine that should have been inspected and quarantined, or have forged the outcomes of the inspection or quarantine shall be investigated and punished by the department of commodity inspection or the department of health quarantine.
Article 55 Business operators that make false or misleading publicity in relation to commodities and services shall be investigated and punished by the departments of administration for industry and commerce.
Article 56 Where any business operator has committed the act prescribed in Item 4 of Article 49 of these Regulations whereby he has marked up prices and charges without displaying the price tags, he shall be investigated and punished by the competent* department of price according to law.
Article 57 Where business operators refuse to provide or provide invoices, receipts or service certificates in contravention of the pertinent provisions, they shall be investigated and punished by the taxation department according to law.
Article 58 Where business operators refuse investigations unreasonably when the consumer associations conduct investigations on the basis of the complaints they have received from consumers, they shall be ordered to make corrections and be given a warning; where they refuse to make the corrections, they shall be fined not less than RMB 100 yuan but not more than 500 yuan each.
Article 59 Any functionary of the State organs, who neglects his duties, abuses his powers, practices favoritism for personal gains or shields any business operators to the detriment of the legitimate rights and interests of consumers shall be given administrative sanctions by the department he belongs to, or by an organ at a higher level; if the circumstances are so serious as to constitute a crime, he shall be investigated for criminal liabilities according to law.
Where the entrusted appraisal departments or appraisal experts make false appraisals intentionally and their acts constitute crimes, they shall be investigated for criminal liabilities according to law; where no crimes are constituted, they shall be given a warning, or ordered to make corrections, or to suspend operation for rectification or right up to the revocation of registration by the relevant competent departments according to law, depending on the seriousness of the cases.
Where any functionary of a consumer association fails to perform his duty or favors and shields any business operators that have infringed upon the legitimate rights and interests of consumers, he shall be dealt with by the consumer association he belongs to, in accordance with its articles of association and the relevant provisions.
Chapter VII Supplementary Provisions
Article 60 The farmers' purchase of materials and relevant technical services as seeds, chemical fertilizers, pesticides, agricultural films and diesel oil to be applied directly in agricultural production shall be governed with reference to these Regulations.
Article 61 These Regulations shall be effective as of August 1, 2009.