“知假买假”的效果证成与文本分析

发布时间：2019-01-06 18:49

【摘要】：在解释论的基础之上,借鉴域外的经验性做法,应将买受人不知瑕疵存在显著降低基本效用、瑕疵存在违反强制性规定或双方当事人存在品质约定作为正当化"知假买假"者权利的依据。三者具备其一即可呈现正效果,而欲否定该效果,则需三者同时缺位。无论对消费者的内涵作广义理解抑或狭义把握,仅存在解释路径的差异,不影响"知假买假"者主张损害赔偿。对于出卖人的明知,应根据表面证据规则,作有利于买受人的推定。相反,对瑕疵的证明,应由买受人承担举证责任。从对现行法的目的解释出发,惩罚性赔偿不应以瑕疵结果损害的出现为要件。从应然的角度,应褪去"知假买假"者作为"公共卫士"的光环,使其淡出打假的舞台,强化公权力的作用,方能正本清源,保障产品质量的安全。
[Abstract]:On the basis of the theory of explanation and using the experience of foreign countries for reference, we should reduce the basic utility of the buyer who is not aware of the defects. The existence of defects violates the mandatory regulations or the quality agreement of both parties as the basis for justifying the rights of those who know the fake and buy the fake. The three have one positive effect, but if they want to negate the effect, they need to be absent at the same time. No matter the connotation of consumers is understood in a broad sense or narrowly grasped, there are only differences in interpretation paths, which does not affect the claim of compensation for damages by those who "know fake and buy fake". The seller's knowledge shall be presumed in favour of the buyer in accordance with the prima facie rules of evidence. On the contrary, the buyer should bear the burden of proof for the defect. Based on the interpretation of the purpose of current law, punitive damages should not be regarded as the appearance of defects. From the point of view of ought to be, it is necessary to shed the aura of "knowing fake and buying fake" as a "public defender", so as to make it fade out of the stage of fighting forgery, strengthen the role of public power, and ensure the safety of product quality.
【作者单位】：清华大学法学院;
【分类号】：D922.294;D923.6

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