法国消费欺诈行为的法律规制及借鉴

Regulation on Consumption Fraud in French Law and Its References to China

法国《消费法典》未规定消费欺诈,而是采用了"商业欺诈行为"的概念,包括作为的商业欺诈行为与疏忽的商业欺诈行为,前者有混淆风险、欺诈陈述、不指明行为实施者三类假定,后者涉及违反实质信息提供义务。商业欺诈行为的主要处罚包括罚款、罚金与监禁,附加处罚包括公告判决、发布更正通告、停止违法行为,缔约方可主张合同无效和损害赔偿,严重情形构成诈骗罪。建议我国系统地设定消费欺诈行为规则,明确不作为构成消费欺诈的条件,强制责任主体自行公告消费欺诈行为等。

French Consumption Code does not provide consumption fraud but employs the conception of commercial fraudulent practices by action or by omission. Those by action conclude three sorts of assumption of confusion risk, fraudulent presentations and failure of identification of executants, while those by omission are mainly involved in the violation of obligation of affording material information. The principal punishments for fraud are of fine and imprisonment, and accessory punishments are to order the publication of sentence, corrective notice and to stop fraud. Also contracting party may allege contractual inefficiency and further claim for damages in such cases. The grave fraud may be sentenced as crime of fraud. In China the provisions related to consumption fraud are available in scattered laws and regulations. Our legal elements of consumption fraud with regard to subject, practice, caution and subjectivity are wholly different from those of traditional civil fraud. The liabilities corresponding to consumption fraud are punitive civil damages and multiple administrative penalties. The grave advertisement fraud may be pursued as crime of false advertisement. It＇s suggested to stipulate systematically the rules of consumption fraud by Chinese law, confirm when and where the omission would be of consumption fraud, order the responsible to announce his misbehavior by himself, and etc.