■ Text/Kong Chunhong
In May 2012, a report was received from a well-known brand clothing company (hereinafter referred to as Company A), and law enforcement officers of the Quality Supervision Bureau of J City, Jiangsu Province conducted law enforcement inspection on No.82 warehouse in Zone D of a commercial plaza, and found a batch of underwear of a certain brand in stock. On-site representative of Company A issued an appraisal certificate, which determined that the underwear seized on site was a counterfeit product of a certain brand. Further investigation found that this batch of underwear was supplied to J city by the Zhejiang distributor of Company A, and the distributor provided the outbound order of this batch of underwear manufacturer, which was consistent with the batch number of the seized products. After verification with Company A, it is confirmed that this batch of underwear is produced by Company A’s underwear factory, but it is only sold in Zhejiang, and it is not allowed to be sold across regions according to the internal regulations of Company A, otherwise it will be treated as counterfeit products. According to the investigation results, law enforcement officers thought that this was an irregular act of commercial competition within an enterprise, and they could not identify the underwear as counterfeit products according to the allegations of the enterprise, so they decided to dismiss the case.
In the Opinions of the General Administration of Quality Supervision, Inspection and Quarantine on Several Issues Concerning the Implementation of the Product Quality Law, it is pointed out that "the quality and technical supervision department needs to identify the products suspected of counterfeiting in the process of administrative law enforcement, and the identification conclusion can be used as one of the important evidences for handling technical supervision administrative cases. After verification, the administrative law enforcement department of quality and technical supervision can use the appraisal conclusion issued by the counterfeit production enterprise and other supporting materials as the basis for determining the authenticity of the product. " Under normal circumstances, the authenticity appraisal of products is entrusted to be issued by counterfeit production enterprises. When handling cases, there is often a misunderstanding that the appraisal conclusion is made by counterfeit enterprises and must be correct, so it should be taken as the basis for finalizing the case. There is no need to carefully review the appraisal conclusion, blindly believe it and use it, and even lead to misjudged cases.
In the practice of handling cases, due to the influence and limitation of subjective and objective reasons, the appraisal conclusion does not rule out the possibility of making mistakes. As in this case, the appraisal certificate issued by Company A is obviously of low effectiveness, and it is difficult to draw the conclusion of counterfeit products only by this paper appraisal certificate. If law enforcement departments directly identify such flawed appraisal conclusions, once faced with administrative litigation, the legality of specific administrative acts of administrative organs will be questioned, and even lead to the invalidation or revocation of specific administrative acts. Therefore, law enforcement departments must carefully analyze the actual situation of the case, review and judge the appraisal conclusion, comprehensively judge the probative force of the appraisal conclusion, and avoid covering the whole with one side. In this way, the substantive facts and procedural facts related to the administrative punishment of accepting the appraisal conclusion will not be passive, thus reducing or avoiding the occurrence of misjudged cases.
The examination and judgment of expert conclusion includes the examination of evidence ability and probative force. Evidence ability, that is, the qualification that the appraisal conclusion can be adopted as final evidence. Proof, that is, the role of expert conclusion in proving the facts of a case. The examination of the evidential ability of expert conclusion is mainly realized by examining and judging the "three natures" of expert conclusion. The first is the authenticity review, which is mainly reflected in the objectivity of the appraisal materials and whether the appraisal conclusion is objective and true. The second is the relevance review, which focuses on whether the appraisal conclusion is in line with the entrustment requirements and whether it is beyond the appraisal scope; Whether the legal issues or other specialized issues that should not be solved by technical appraisal have been determined, and whether there is any contradiction with other evidence; Conclusion Whether the logical reasoning conforms to the routine, whether the causal analysis is clear, and whether the appraisal analysis opinions are sufficient and reasonable; Whether the appraisal standard is accurate and proper, and the basis is sufficient; How close the appraisal materials are to the disputes in the case, and whether they can be used as the basis of relevant appraisal conclusions. The third is the legality review, including whether the conclusion formation process and the conclusion content meet the legal procedures and requirements. The focus of the review is whether the source of the appraisal materials is legal, whether the appraisal procedures are legal, whether the appraisal technical means are scientific, whether the contents to be included in the appraisal book are complete, and whether the meaning of the appraisal conclusion is clear.
The review of the probative force of expert conclusions should focus on the following aspects:
(a) to examine whether the appraiser has the corresponding qualifications. The correctness of the appraisal conclusion is directly related to whether the appraiser has the corresponding qualifications and whether the appraiser has an interest in the case. In order to ensure the correctness and reliability of the expert conclusion, the qualification of the expert should be strictly examined. Usually, the producer marked on the product should be the appraiser for the identification of the authenticity of the product. If the product is not marked with producer information but only with a registered trademark, it shall be identified by the registered trademark holder or its authorized appraiser.
(two) to examine whether the materials on which the appraisal is based meet the appraisal requirements. Whether the appraisal conclusion is correct or not has a great relationship with whether the materials on which the appraisal is based are true, reliable and sufficient. Only when the appraiser has mastered the reliable materials necessary for appraisal can he make a correct appraisal conclusion. Therefore, when reviewing the appraisal conclusion, an important content is to review the materials on which the appraisal conclusion is based, mainly to review whether the materials are true, reliable and sufficient. To examine whether the basis of the appraisal conclusion is sufficient, we should start with the accuracy of the appraisal standards, the sufficiency of arguments, the rationality of reasoning, and the contradiction between arguments and conclusions. If the appraisal conclusion is based on the reason, even ordinary people who don’t have the professional knowledge of appraisal matters will find its logical inconsistency when they look at the appraisal conclusion, or those who have a little relevant professional common sense will see that it is a counterintuitive appraisal conclusion, which is obviously unacceptable.
(three) to examine whether the methods and means on which the appraisal is based are scientific. In the process of identification, many problems must be solved by using advanced scientific and technological means and adopting new inspection methods. Therefore, when reviewing the appraisal conclusion, we must review the methods and means on which the appraisal is based. These methods and means are mainly embodied in the "analysis and explanation" part of the appraisal book. Analysis description is the key part of the appraisal book, and it is also one of the signs that the appraisal conclusion is sufficient and reasonable. It includes three aspects: first, analysis, that is, analyzing the appraisal data and various inspection results provided by the client, and finding out whether they are fixed, consistent and different from the affirmation points entrusted to reflect the essential attributes of the product; The second is to identify and judge, that is, on the basis of the previous analysis, to identify, reason and judge whether these affirmative points are fixed points, coincidence points and difference points, and to give a clear answer to the reasons for the entrusted appraisal; The third is explanation, which mainly refers to the process of how to draw the appraisal conclusion from the inspection results in popular and accurate words, that is, to elaborate and explain the above process of analysis, identification, reasoning and judgment.
(four) to examine whether there is any contradiction between the appraisal conclusion and other evidence in the case. When reviewing the expert conclusion, we must make a comprehensive analysis and comparative study with other evidence in the case. It is not enough to identify the facts only by the expert conclusion. We must prevent the wrong practice of hasty conclusion based on one expert conclusion. The so-called evidence rule that isolated evidence cannot be finalized is also applicable to the expert conclusion. Through the comprehensive analysis of the appraisal conclusion and other evidence, we can not only find the problems existing in the appraisal conclusion itself, but also find the authenticity of other evidence. If it is found that the appraisal conclusion is mutually confirmed with other evidence, and the evidence of the whole case forms a logical and reasonable evidence system, it can be concluded that the appraisal conclusion has high reliability. On the other hand, if there is a contradiction between the expert conclusion and other evidence in the case, and the contradiction cannot be fully and reasonably explained, it is necessary to re-examine and identify the expert conclusion and carefully screen it. Of course, if the evidence of the whole case is reviewed, especially after both parties have given evidence and cross-examination, if the other party provides evidence to the contrary and convincing reasons, the probative force of the expert conclusion can be directly ruled out.
The evidential function of the appraisal conclusion is often reflected by the overall content of the appraisal book, which reflects the entrustment, process, steps, methods and results of appraisal, and is made by the appraisal institution or appraiser according to law, with various forms of expression, such as appraisal report, inspection report, appraisal analysis opinion and appraisal review opinion. However, in the practice of handling cases, the format and content of the appraisal book are very irregular, which even affects whether the appraisal conclusion has evidential value. In order to change this situation, we should put forward some normative requirements for the production of appraisal books, ensure that the contents of appraisal books are complete and the forms are legal, and promote the standardization of appraisal institutions and appraisal activities.
Article 14 of the Supreme People’s Court’s Provisions on Several Issues Concerning Evidence in Administrative Litigation (Fa Shi [2002] No.21) stipulates: "The expert conclusion provided by the defendant to the people’s court in the administrative procedure shall specify the matters entrusted by the client and the entrusted expert, the relevant materials submitted to the expert department, the basis of the expert, the scientific and technical means used, the expert department and the description of the expert’s qualification, and shall be signed by the expert and sealed by the expert department. The appraisal conclusion obtained through analysis shall explain the analysis process. " Thus, in general, the appraisal book should have these contents: (1) the contents of the appraisal, that is, the matters that need to be appraised, including the cause of action, the purpose and requirements of the appraisal; (2) Relevant materials submitted during the appraisal, such as the samples submitted for inspection, the names, quantities, types and properties of the samples; (3) the basis of identification and the scientific and technical means used, so as to facilitate law enforcement departments to review whether the identification method is scientific, advanced and effective; (4) the process of appraisal, that is, the rules, steps and methods that appraisal subjects should abide by together in appraisal activities; (5) A clear appraisal conclusion, which is the most important part of the appraisal book, must comply with the requirements of laws and industry norms, and must not exceed the scope of the appraiser’s functions and powers, and may not characterize the case and draw legal conclusions; (6) A description of the appraisal qualification of the appraisal department and appraiser, such as the authorization certificate of the appraisal institution, business license, authorization certificate of the appraiser, identity documents, etc.; (7)Signature and seal of appraiser and appraisal department, such as official seal or special seal of appraisal institution, appraisal date, and multi-page appraisal book stamped with riding seal, etc.
As an important link in the appraisal process, the quality of the appraisal book directly affects its use. When making the appraisal book, we should pay attention to whether its basic content is perfect, whether there are omissions or biases. Only when the above content requirements are met can the appraisal conclusion be accepted. Law enforcement departments should conduct a careful review. If the contents of the appraisal book are found to be lacking or the appraisal conclusion is unclear, they should ask the appraisal institution or appraiser to explain, supplement or re-appraise. In a certain sense, the appraisal conclusion is only the transformation of the appraisal book in the administrative procedure, and the law enforcement department should bear the burden of proof for the entrustment procedure of appraisal and the appraisal method of the appraisal institution. Therefore, in the administrative law enforcement procedure, the appraisal must meet the above requirements, otherwise it cannot be used as evidence for administrative punishment.
At present, there is no uniform format for the appraisal. Jiangsu Provincial Bureau of Quality Supervision entrusted the internationally renowned brand Y (China) Company to identify the authenticity of the products when investigating a major case of manufacturing and selling counterfeit air compressor lubricating oil and accessories. Due to the seriousness of the case, the case was transferred to judicial organs for criminal responsibility. The appraisal certificate issued by Y (China) Company has been recognized by the judicial authorities and has become an important evidence for handling criminal cases. Here, the format of the certificate issued by Y (China) Company is taken as an example for the reference of law enforcement colleagues.
Appraisal book
Client: Jiangsu Provincial Bureau of Quality and Technical Supervision
Date of entrustment: xxxx year x month xx day
Entrusting matters: Authenticity identification of seized products.
Identification of products: See List 1 (list by serial number, product name, picture, product number and quantity respectively).
Appraisal date: xxxx year x month xx day
First, the appraisal process:
1. Our company, Y (China) Company, is located at xx Road, xx City. Our company is a wholly-owned subsidiary of Company Y, entrusted by its parent company, Company Y, to handle the protection of the Y trademark in China, including the authentication of the products of Company Y..
Company Y registered the registered trademark of Y in the seventh category of international classification, and its designated products include air compressors and their parts.
On xx, xxxx, your bureau conducted a law enforcement inspection on the xx factory located in xx city. Our company has appraised the above-mentioned products with Y trademark seized by your bureau.
2. Appraisal method: appraisal is conducted by the way of appearance comparison of the physical objects.
II. Analysis Description: (Compare and explain each product separately)
Third, the appraisal conclusion
To sum up, after our company’s appraisal, the products identified are not products produced by our company, but products forged by our company.
We hereby declare that our company and its affiliated companies have never had any business dealings with xx Company. At the same time, our company has never authorized the above-mentioned companies to use the Y trademark in any express or implied way.
Appraiser: regional after-sales service operation supervisor of xxx Y (China) Company.
Appraiser: Product Quality Specialist of xxx Y (China) Company.
Appraisal unit (seal): Y (China) Company.
Authorized signatory: legal adviser for Asia-Pacific region of xxx Y Company.
Appraisal date: xxxx year x month xx day
(Author: Taizhou Bureau of Quality and Technical Supervision, Jiangsu Province)
China Quality and Technical Supervision, April 2013
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