Beijing's new takeout regulations will be implemented tomorrow: passive hands and feet can protect rights in this way
2022-03-31
At 11:00 pm, many office workers will open the takeout platform app on time, check the evaluation, compete for discounts, and choose a suitable lunch for themselves... Takeout seems to be an important channel for everyone to solve personal eating problems. However, when faced with problems such as "the taste of takeout is strange" and "there is a problem with the food, but the takeout store does not admit it", most of them choose to give a bad comment and then stop investigating. According to the 49th statistical report on China's Internet Development released by China Internet Network Center (CNNIC), as of December 2021, the number of takeout users in China has reached 544 million. However, most of these users do not understand the management standards of the takeout industry, nor are they familiar with the legal provisions of food safety. Even though many people have had unpleasant dining experiences, the time, money and other costs of safeguarding their rights make them choose to calm down However, the provisions of the Supreme People's Court on Several Issues concerning the application of law in the trial of online consumption dispute cases (I) has been implemented on March 15, and the code for the safety management of online catering services issued by Beijing municipal market supervision and administration will also be implemented on April 1, 2022. For the common problems in the four types of takeout consumption, you can protect your rights in this way! Situation 1: spitting during takeout Mr. Li found that the takeout lunch box was different, so he complained to the platform. After investigation, it was found that the takeout clerk was dissatisfied because the customer refused to put the takeout in the elevator. Then he opened the lunch box and spit in it. The platform said that the takeout clerk had warned and compensated Mr. Li with a 10 yuan red envelope, which Mr. Li said was unacceptable. Li Lihua, assistant judge of Beijing Chaoyang Court, introduced that the "code for the safety management of online catering services" stipulates the requirements for packaging, including the sealing methods such as taking out packaging seal or one-time sealed outer packaging bag. The seal and outer packaging bag mouth should not be restored after opening; The outer packaging shall not be opened during the distribution process. In case of food pollution, the distribution shall be terminated; During loading and unloading, the doors and covers of distribution equipment and facilities shall be opened and closed at the same time. When ordering takeout, we should also pay attention to the hygiene of delivery. After receiving takeout food, we should first check whether the food packaging is intact and clean, whether the distributed food is consistent with the ordered food, and check whether the food is contaminated face to face. Once the food is found to be contaminated, it can be rejected. Before the takeout food is successfully handed over to consumers, the merchant has the obligation to deliver the food to consumers completely and safely, so consumers can ask the merchant to provide takeout food that meets the food safety and hygiene standards again, or ask the merchant for a full refund. After the merchant refunds or redoes to the consumer, if there is evidence that the takeout has damaged the food during the delivery process, the merchant can ask the takeout to compensate for the corresponding losses in accordance with the relevant provisions on infringement in the civil code. In addition, the takeout spits in the customer's food, which has a certain personal insult and affects the safety and health of the food. The customer can let the takeout or the merchant and other relevant infringement subjects bear the corresponding tort liability. Case 2: the weight is different from the expectation Ms. Zhang ordered takeout on a takeout platform. After receiving the goods, she weighed them with her own electronic scale and found that the weight of the takeout was half less. After negotiation with the merchant, the merchant returned half of the price to Ms. Zhang. Li Lihua said that the code for the safety management of online catering services stipulates that the platform should truthfully and accurately release the transaction related information such as dish photos, prices, quantities, specifications or recommended number of people provided by catering service providers. Relevant tips on anti food waste, such as "save food" and "order an appropriate amount of food", shall be marked at an appropriate position on the page. However, when you open the takeout platform, although you can see that the takeout merchants have marked the meal specification, reference weight, taste, recommended consumption number and other information on the meal browsing page, the food received by consumers after placing an order is sometimes different from the weight marked on the commodity publicity page, and even there will be great differences. In this case, consumers should keep consumption vouchers, transaction records, keep the food in its original state, and fix the evidence by taking photos, recording videos, etc. If the merchant constitutes fraud, it can also claim for additional compensation for its own losses in accordance with Article 55 of the law of the people's Republic of China on the protection of consumers' rights and interests. The amount of increased compensation is three times the price of purchasing goods or receiving services. If the amount is less than 500 yuan, it is 500 yuan. Li Lihua said that the takeout delivered by the merchant is seriously short of weight, which has constituted fraud, and Ms. Zhang has the right to claim punitive damages. Situation 3: the taste is worse than that of hall food Mr. Wu ordered a cup of pearl milk tea through a takeout platform. When tasting it, Mr. Wu found that the taste of milk tea was poor and inconsistent with that of hall food. As a result, he found that there was a stone with a diameter of 0.7cm in the milk tea. Mr. Wu claimed from the merchant. For Mr. Wu's rights protection, the merchant said that it could only make compensation in the form of red envelopes. Li Lihua introduced that the food safety management specification for online catering service stipulates that the quality and safety of food supplied through online catering service should be consistent with that of hall food. Online catering service providers shall provide food preparation time, recommended consumption time limit and other consumption related information with meals. Online catering service providers should make food according to online orders. The food of the same order should be produced at the same time. If it cannot be produced at the same time, they should reasonably arrange the meal order and produce the food that is easy to preserve first. The food shall be packaged and distributed immediately after preparation. The temporary storage time of perishable food to be temporarily stored shall not exceed 1 hour. The temporary storage temperature should be above 60 ℃ for hot storage and below 8 ℃ for cold storage. When receiving takeout, consumers should check their sensory properties. If the takeout food received is different in natural taste due to problems such as delivery time and takeout packaging, there are no product quality problems and potential safety hazards, and the merchant does not need to bear responsibility. If it is found that the appearance of food is abnormal and there are safety problems such as deterioration, it shall actively safeguard its own rights. According to the food safety law of the people's Republic of China, when producing food that does not meet the food safety standards or operating food that knowingly does not meet the food safety standards, consumers can not only claim compensation for losses, but also claim compensation of ten times the price or three times the loss from the producers or operators; If the amount of additional compensation is less than 1000 yuan, it shall be 1000 yuan. However, the food labels and instructions have defects that do not affect food safety and will not mislead consumers. Li Lihua said that the presence of stones in milk tea poses a serious threat to Mr. Wu's safety, and Mr. Wu can claim compensation. Li Lihua pointed out that consumers in similar situations need to be reminded that in the process of dispute resolution, consumers need to provide evidence for the foreign matters existing in the food before eating, otherwise they may lose the lawsuit because they can't provide evidence. Therefore, once foreign matters are found, evidence must be retained throughout the process. Taking videos, photos and looking for witnesses are all helpful to find out the facts. However, if it is verified that the foreign object is placed by the buyer himself to make a malicious claim, it may constitute extortion, or even violate the criminal law, and will be investigated for criminal responsibility. Scenario 4: order meets "ghost merchant" After eating the takeout food ordered from a platform, Ms. Zhao felt unwell and was sent to the hospital, resulting in a lot of medical expenses. After hearing about this, the merchant quickly moved out of the offline store. Ms. Hou Zhao's family sued the merchant according to the information registered on the platform, and found that the registered address was inconsistent with the actual business address, and the relevant licenses were forged. Ms. Zhao advocated that the platform should bear the responsibility, but the platform refused. Li Lihua said that the code for the safety management of online catering services stipulates that the third-party platform should not only review and display the licenses and other relevant qualification certificates of online catering service providers, but also review and display the basic information of the physical stores of online catering service providers, including name, brand and address, as well as the photos indicating the identity of the stores, such as facade, doorway, plaque or logo, sales counter, etc, Strengthen the responsibility of platform audit. The provisions of the Supreme People's Court on Several Issues concerning the application of law in the trial of online consumption dispute cases (I) stipulates that the operators of online catering service platforms violate the provisions of the food safety law, fail to register the real name of online catering service providers, review the license, or fail to perform the obligations of reporting and stopping the provision of online trading platform services, thus damaging the legitimate rights and interests of consumers, If a consumer claims that the operator of the online catering service platform and the online catering service provider bear joint and several liability, the people's court shall support it. If the food operated by the online catering service provider damages the legitimate rights and interests of consumers, and consumers claim that the online catering service provider shall bear the operator's responsibility, and the online catering service provider defends on the ground that the order is processed and produced by others, the people's court will not support it. Li Lihua believes that Ms. Zhao's experience is not accidental. In real life, consumers often encounter "ghost merchants" when ordering takeout. Many problems such as expired licenses of catering stores, failure to obtain food business license qualification, failure to publicize license information, out of scope operation, non-existent store address, unlicensed operation of offline entities and so on are often seen in the newspapers. Many pure takeout stores hide in corners, It has become a disaster area with frequent food safety problems. In addition, some platforms have set up barriers for consumers to query the qualification information of takeout businesses. On the applet and app of relevant e-commerce platforms, there are some problems such as the business license and food business license of some takeout businesses are not publicized, the qualification query link cannot be opened, and the low recognition of publicized information, which not only affects consumers' judgment on whether the business is a "ghost business", but also after encountering such "ghost businesses", It is even more difficult to lock the infringement subject for rights protection. This not only reflects the problems of takeout businesses, but also the problems of the service platform itself. In order to avoid the above problems, Li Lihua reminded consumers that when ordering takeout, they should choose formal catering service units, order meals in takeout restaurants with valid food business license or catering service license, choose takeout restaurants with physical stores, do not order takeout food of unknown origin, and consciously resist "black takeout". In case of "ghost merchants" of takeout and failure of self negotiation due to damage, online catering service providers (merchants) and online catering service platform operators (platforms) can be required to bear the liability for compensation in accordance with the provisions of the Supreme People's Court on Several Issues concerning the application of law in the trial of online consumption dispute cases (I). If the platform fails to fulfill its audit obligations, it shall compensate Ms. Zhao for her losses. Li Lihua stressed that if there is a dispute over takeout and the negotiation fails, the prosecution to the court should pay attention to fixed evidence. First, electronic orders and payment vouchers should be retained to prove the existence of contractual relationship between the two parties; Secondly, we should leave marks in the whole process, take videos and photos, carve the videos and photos into CDs, and show the original carrier in the lawsuit to prove that there are quality problems in takeout food; In addition, we can further prove the problems of takeout food by keeping the communication records with takeout merchants and looking for witnesses. （
Edit：He Chuanning Responsible editor：Su Suiyue
Source：Beijing Youth Daily
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