Compensation for damages caused by violation of consumer rights under Vietnamese Civil Law

CHAPTER 1

BASIC THEORETICAL ISSUES ON COMPENSATION FOR DAMAGES CAUSED BY VIOLATION OF CONSUMER RIGHTS

1.1. Basic theoretical issues about consumers and consumer rights

1.1.1. Concept of Consumer

In a market economy, civil, commercial and economic transactions take place quite busily and diversely with many subjects participating in these relationships (individuals, organizations, households, etc.) in many different forms (written contracts, oral agreements, through electronic transactions, etc.). However, not all subjects participating in the above-mentioned buying and selling and service relationships are considered consumers protected under the provisions of the law on consumer rights protection.

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Consumers are those who buy and use goods and services for the purposes of personal, family and organizational consumption. The English word for consumer is consumer , or in some places called "end consumer" to distinguish it from buyers and customers in general (English is customer ). The concept of "customer" has a broader meaning, used to refer to those who buy goods and services for personal use or as raw materials for production and business [8]. Therefore, those who buy and use goods and services for production and business purposes are not subject to the scope of consumer protection law. The concept of consumer in a narrow sense is those who buy and use goods and services for the purposes of personal, family and organizational consumption and living. In a broad sense, consumers, in addition to the purpose of buying and selling goods and using services to serve daily needs, can also serve the needs of reproduction and business.

Thus, it can be seen that consumers are everyone, regardless of age, composition, ethnicity, gender, or social status. Furthermore, consumers

Consumers are present everywhere, from urban to rural areas, remote areas, islands...

In an economy, consumer purchasing power is the lever, the driving force for the development of production, business and service activities. Therefore, the requirement to protect the legitimate rights and interests of consumers is an objective necessity, requiring a combination of many measures. In which, the completion of legal regulations plays an important role.

In the Ordinance on Consumer Rights Protection No. 13/1999/PL-UBTVQH10 dated July 24, 1999, Article 1 of Chapter F stipulates: "Consumers are those who buy and use goods and services for the purpose of personal, family and organizational consumption" .

Thus, according to the provisions of current law, consumers are understood as individuals, families or organizations that purchase and use goods and services for the purpose of daily consumption and work needs of organizations, individuals and families. Specifically:

1. The buyer is the person who uses the purchased goods and services for himself;

2. People who buy goods and services for other people, families or organizations to use;

3. Individuals, families, and organizations use goods and services purchased by others or given as gifts.

Vietnamese consumers, meaning the total population of Vietnam according to the 2008 census, the population of our country at that time was 86,210.8 thousand people. Of which, 50.84% were women (43,826.3 thousand people) and 49.16% were men (42,384.5 thousand people). The number of consumers in rural areas accounted for 71.89%, that is, nearly 61,977.5 thousand people. The number of consumers living in urban areas accounted for 28.11%, that is, nearly 24,233.3 thousand people [29].

Urban consumers account for a small proportion in terms of quantity (28.11%) but play a very important role in consumer lifestyle, in consumption spending as well as in consumption orientation. Urban areas are where consumer life takes place in a very diverse, rich and complex way, especially in large cities. These are places with a high population density, many cultural, industrial and commercial activities, many factories, shops, schools, hospitals, entertainment and recreation areas, etc. Urban consumers are also very diverse, such as workers, merchants, intellectuals, laborers, economic leaders, scientists, managers, politicians, journalists, etc. The years of innovation have brought cities and towns a new, colorful and attractive face, better meeting the essential needs of consumers. Goods are increasingly more diverse and abundant, and the quality of many items is improved compared to before. There are many forms of services and promotions that did not exist before.

These positive changes at different levels have met the different requirements of urban consumers from low, normal to high levels, including the strict requirements of some special tastes. However, the situation in recent times has also raised many complex issues in urban consumption that need to be resolved. From a place where all essential expenses for life were planned according to the system of quotas and coupons with a limited list of goods, today consumers are faced with a market full of different types of goods: good and bad goods, cheap goods mixed with extremely expensive goods, domestic and foreign goods, genuine goods and fake goods - and fake goods are still developing. Urban consumers have a higher level of consumer knowledge than rural consumers, but are also very confused when choosing to buy goods because of the lack of reliable information, while the market is full of ambiguous advertisements and misleading information.

Female consumers account for a large proportion of total consumption in our country (50.84% of the total population). This is a large and important consumer group.

The most important thing is that it has a direct and close relationship with consumer life in our country. Vietnamese women often play a key role in family life, so in the field of consumption, they not only care for themselves but also for their husbands, children and everyone in the family. In the field of consumption, women have more experience than men. Having to go to the market and stores to shop regularly, women have more knowledge about choosing goods and services, about using common consumer goods, knowing how to distinguish between good and bad, real and fake, expensive and cheap... Being in constant contact with the market, women have to bear many impacts of the market mechanism, especially counterfeit goods, poor quality goods, goods that do not ensure hygiene and safety, fraudulent behavior, dishonest weighing, measuring, counting... causing damage to themselves and their families.

Clause 1, Article 3 of Draft 4 of the Law on Consumer Protection stipulates: “A consumer is an individual or organization that legally purchases or uses goods and services not for business purposes”. This provision has helped us have a more comprehensive understanding of the concept of a consumer. Accordingly, “consumer” includes not only individuals and entities that purchase and use goods and services for living purposes but also organizations and legal entities that purchase and use goods and services not for business purposes.

Thus, the term “consumer” as defined by Vietnamese law must be understood as individuals and organizations that legally purchase or use goods and services not for business purposes. Individualizing the above concept helps each specific consumer to be aware of their legitimate rights as prescribed by law. Each person has the ability to use legal tools to defend themselves when there is a violation, even if the violation is isolated, uncommon and the damage value is insignificant.

1.1.2. Characteristics of Vietnamese Consumers

Vietnamese consumer demand during the subsidy period was generally very poor and stagnant. The economy developed slowly with manufacturing industries

Monotonous production of consumer goods, limited in quantity, rationing by coupons, along with "blocking rivers and banning markets" have simplified the material needs of the people. In that context, the satisfaction of human material needs is essentially very true to the purest meaning of restoring the strength that people have consumed in labor at the lowest level. The development of spiritual needs is also not much richer, a prominent feature is the high collectivization in satisfying spiritual needs. Some forms of activities on the surface seem to satisfy the spiritual needs of each individual such as movies, cultural performances, books, newspapers, radio broadcasts... but in fact the monotony in the content of those activities has unintentionally created and maintained impersonality in the way of satisfying needs as well as in the development of human needs. This has historical significance when viewed in terms of the purpose of the struggle for independence and national unification. But if we look at it from the perspective of general social development, it is a negative phenomenon. The low level of demand development and consumption cannot promote the development of social production.

Since Vietnam shifted to a market economy with state management under socialist orientation, socio-economic conditions have changed rapidly. There are 4 basic factors that strongly affect the characteristics of the development of the people's demand system [29], including:

a) The method of managing the economy according to the market mechanism and the policies to encourage production of economic sectors have fundamentally changed the domestic consumer goods market. The previous subsidy period never had a market of products that could satisfy the people's other needs in such a diverse and rich way as today.

b) The above changes in economic management not only diversify consumer products but also create many opportunities for each person to increase their income and have the conditions to satisfy existing needs.

c) The open-door policy, increasing not only economic but also cultural exchanges with other countries, has created conditions for the lifestyle of foreigners to enter Vietnam, allowing Vietnamese people to access their lifestyle and higher living standards. That is one of the factors that can stimulate and create new needs for domestic people, especially urban residents.

d) Along with changes in the living environment are changes in people's awareness and in public opinion. People today are free to develop all aspects of life from production and business activities to enjoyment and satisfaction of their legitimate needs.

In a market economy, the market is mainly regulated by consumption. Consumers have a great influence on economic decisions, whether in the state sector or the private sector. Consumers are also the subjects most affected by economic decisions. Consumer protection is also one of the activities aimed at realizing a fair, democratic, civilized society, and at the same time maintaining and fostering an important economic driving force. As the market economy develops, the issue of consumers and consumer protection needs to be raised and implemented more seriously. With Vietnam's policy of international economic integration, products of many foreign companies have also penetrated and found a foothold in the Vietnamese market. Most companies investing in Vietnam bring with them modern technological lines and advanced management experience. However, there are also some companies using Vietnam as a place to dispose of inventory, assemble outdated technological lines for factories in Vietnam or conduct marketing tricks that confuse consumers. Some companies that should invest capital in production to ensure product and service quality instead spend huge amounts on advertising and marketing campaigns. As a result, in many cases, consumers themselves are the victims of these massive but inaccurate and sometimes misleading advertising campaigns.

In summary, in the years of economic innovation, Vietnamese consumers have appeared in our country's market with the following main characteristics:

(i) Consumers entered the threshold of the new economy after years of recovery and development of an economy still heavily subsidized with the consequences of decades of war, serious imbalances in supply and demand, shortages of goods, the state only taking care of the minimum essential needs of the people through the method of distribution by coupons in a period when the commercial sector seemed to be the giver and consumers were the recipients of that giving without being able to choose according to their own will.

(ii) During the years of socio-economic renovation, the aspirations and wishes of consumers have begun to be paid attention to by manufacturers, distributors, and service providers, and have been actively implemented. The voices of consumers have begun to be listened to by managers. The position of consumers has begun to be promoted in the market. Consumer magazines have appeared, many newspapers have had columns for consumers, and have published many articles related to consumers.

(iii) Since the whole country started to build a multi-sector commodity economy with socialist orientation under the management of the State, our country's consumers have not been fully prepared with knowledge, understanding, psychology, and consumption habits suitable for the current market economy and for the future. Consumers are not really clear about their rights and responsibilities as well as how to protect their rights.

(iv) Vietnamese consumers currently lack a complete legal system and policies to protect themselves. In recent times, the Ordinance on Consumer Rights Protection as well as a number of Decrees, Decisions, Directives, and Circulars

… of the Government and Ministries have also issued a number of regulations related to consumer protection, but those regulations are still fragmented,

patchwork, incomplete. That makes consumers lack confidence, do not clearly see their rights and obligations, leading to passivity in activities.

(v) Vietnamese consumers have not yet been properly guided, informed and oriented to be able to be autonomous in their activities. The lack of guidance and necessary information makes consumers easily misled by advertisements and false information in choosing and purchasing goods that are disadvantageous to them. The lack of orientation makes consumers easily fall into unhealthy consumer lifestyles, consumer lifestyles from outside that are not suitable to the country's conditions and the nation's traditions.

(vi) Vietnamese consumers have so far often suffered from negative impacts of the market, especially from counterfeit goods, poor quality goods, goods that do not ensure hygiene and safety, from fraudulent service methods, from inaccurate weighing and measuring, from lying, overcharging, fraud and countless other tricks and tricks of dishonest people that cause a lot of damage to consumers in terms of finance, property, mental life, health, and even their lives.

(vii) Looking back over thousands of years of our country's history, we see a strikingly self-sufficient agricultural economy throughout almost the entire length of history, in which production and consumption are so closely linked that there seems to be no separation of the concept of "consumer" separately and in opposition to "producer" as understood by industrialized countries in the past decades. In the future, we will move towards building a socialist-oriented market economy, which also has differences from the building of a market economy that capitalist countries have experienced, including resolving the relationships between production and consumption as well as between producers and consumers.

1.1.3. Consumer rights

Consumers are an important part of society, they are the driving force behind the production and consumption of goods, because without consumers