Service period change for merchants on the way
How to resolve prepaid consumer disputes during the epidemic
□ Our reporter Zhang Wei
The pace of life has slowed down, my home stays away for many days, I love shopping online, and the list is based on daily necessities ... Since the outbreak of the new crown pneumonia epidemic, people's lifestyles have basically followed this pattern.
From the demand side, in various fields, consumption has been hit hardest by the epidemic. The limited consumption directly triggers the contradiction between consumers and operators, which is most obvious in prepaid consumption contracts.
This has also become the most noteworthy topic of this year's "March 15th"-prepaid consumer disputes in the epidemic period have increased significantly, how should consumers protect their rights?
Recently, Beijing Sunshine Consumer Big Data Research Institute and Consumer Network released the "Analysis Report on Prepaid Consumer Rights Protection during the New Coronary Pneumonia Epidemic Period" (hereinafter referred to as the "Report"), saying that the prepaid consumer disputes during the epidemic period were mainly concentrated in business suspension and retirement Fee disputes, changes in service methods, limited use periods, and business closures or closures.
Chen Yinjiang, deputy secretary general of the Consumer Law Protection Law Research Society of the Chinese Law Society, told reporters from the Legal Daily that to solve the problem of prepaid consumption, it is necessary to improve laws and regulations, clarify regulatory responsibilities, strengthen supervision of prepaid funds, and establish a credit evaluation system. On the other hand, we should establish a prepaid consumption standard development model with complete regulations, multi-party interaction and shared co-governance as soon as possible.
Contract content cannot be achieved
Consumer disputes increased significantly
The sudden outbreak has severely affected consumers 'daily lives and operators' business activities. Due to many restrictions such as travel and venue, many prepaid consumption contracts could not be realized during the epidemic prevention and control period, and the prepaid consumption disputes caused by this were significantly increased.
In order to arrange family dinners for family and friends, Mr. Ke plans to book a New Year's banquet in a restaurant in his hometown in advance. When he learned that the hotel had a discount, he applied for the card and recharged it with 4,000 yuan.
Unfortunately, it was not long before the card was issued and there was no time to consume, the epidemic broke out, the restaurant was closed for business, and it was impossible to have dinner in the restaurant during the Spring Festival. Mr. Ke believes that this is not his own reason, the hotel should have refunded, but did not expect that this request was rejected. The reason given by the hotel is that the amount in the card can be consumed after the epidemic situation.
"I usually work outside the country. Except during the Spring Festival, it is impossible to return to my hometown to spend." Mr. Ke could not accept the hotel's statement.
Regarding such consumer disputes caused by the suspension of business, the "Report" believes that the epidemic of new crown pneumonia cannot be foreseen, unavoidable, and insurmountable, which is a force majeure factor. However, the outbreak has regional and persistent characteristics. Therefore, to determine the force majeure factors of the epidemic, we must also consider factors such as specific regions, specific times and specific impacts, such as the time when the country announced the type of the epidemic and the level of prevention and control. Measures taken to prevent and control the epidemic.
Take Mr. Ke's experience as an example. Mr. Ke booked a New Year's Eve banquet. The New Year's Eve is on January 24. On January 20, the National Health and Medical Commission included the new coronavirus into the Class B infectious disease, and adopted preventive and control measures for the Class A infectious disease. Therefore, according to the contract law, Mr. Ke and the hotel have the right to terminate the contract, and neither party has to bear the liability for breach of contract. If the consumer has previously spent part of the purchase, he can request a refund of the remaining amount after deducting the consumption part; if the consumer has previously paid a deposit, he is also entitled to request a refund of the deposit. However, if the consumer's reservation project does result in actual expenditure by the operator, the two parties should negotiate to share the relevant expenditure expenses reasonably.
Like Mr. Ke, Ms. Liu's prepaid consumption contracts were also affected. The difference is that she can continue to enjoy the paid service, but the content or method of the service will change.
Ms. Liu planned early for the child how to live a winter vacation, including enrolling a winter English training class for the child. To this end, she paid 3,800 yuan to a training institution.
However, offline training was not available after the outbreak. The training institution informed Ms. Liu that offline training was changed to online training, and the class was still the previous teacher. However, Ms. Liu was unwilling to accept the change and asked the training institution to refund the full cost. Disputes between the parties.
An expert from Beijing Sunshine Consumer Big Data Research Institute said that offline training was changed to online training. Although the training content has not changed, the training method has changed significantly, in fact, it is a contract change. According to the relevant provisions of the Contract Law, changes to the contract require the two parties to reach consensus. At the same time, the factors that need to be considered are: considering the epidemic prevention and control, and life, health and safety, the training institutions changed offline training to online training, indicating that they have made active efforts to achieve the purpose of the contract. If it does not affect the training effect or produce other negative effects, the two parties should understand each other and work together to achieve the purpose of the contract.
Consumption period affected
Stores closed boss run
In addition to the above two cases, among the prepaid consumption disputes caused by the epidemic, the more common ones are the impact of prepaid consumption periods and the problem of business running.
Ms. Wang has a fitness year card in a fitness club, and the membership period is from June 15, 2019 to June 14, 2020. At the beginning of the outbreak, the fitness club had not been closed, but Ms. Wang never went to the club to exercise for safety reasons. Later, due to the impact of the epidemic, the club's business was suspended, but members have not been notified how to solve the problem of not enjoying services during the epidemic. Ms. Wang is worried that after the membership card expires, the clubhouse will not extend the appropriate use period.
In this regard, relevant experts of the Beijing Sunshine Consumer Big Data Research Institute believe that during the suspension of business, consumers did not enjoy membership services, which should be part of the contract content not fulfilled. After the epidemic is over, the club should appropriately extend the membership service period or refund the corresponding membership fees in accordance with the rate conversion. The extended or discounted membership time may be calculated according to the period of time when the epidemic prevention and control has been announced and released by the relevant state departments, rather than the club ’s business hours. However, if the club is still closed after the epidemic is announced, it should be calculated based on the actual service hours provided.
Compared with the previous ones, Mr. Leng suffered the worst.
In November 2019, Mr. Leng set up a 2,000 yuan hairdressing card in a hairdressing shop. Just after making a haircut in this hairdressing shop, the hairdressing shop was closed due to the epidemic. Although many barbershops have been opened recently, this barbershop has not been opened and the phone is not answered.
After understanding, Mr. Leng knew that there was a problem with the capital chain of this hair salon, and it was likely that he could not continue to operate. Mr. Leng was worried that the balance on his card was lost and he didn't know how to protect his rights.
"Regardless of the cause of the epidemic or its own operating problems, if the barber shop is closed or closed, the consumer's advance payment cannot be taken as his own." According to the above-mentioned experts, according to the consumer rights protection law, the operator provides in advance payment Goods or services shall be provided in accordance with the agreement; if they are not provided in accordance with the agreement, the agreement shall be fulfilled or the advance payment shall be returned in accordance with the requirements of the consumer, and the interest on the advance payment shall be borne.
"Report" pointed out that, in response to such situations, consumers can lodge a complaint with the relevant administrative department or file a lawsuit in the court to protect their legitimate rights and interests. Relevant departments should also investigate consumers' complaint information. If they are indeed affected by the epidemic or mismanaged, they can follow the corresponding bankruptcy procedures. However, if problems such as illegal transfer or advance payment are found, it is likely to be suspected of illegal fund-raising or fraud and should be transferred to the public security organ for investigation.
Mutual understanding and mutual rights protection according to law
Multi-pronged approach
How to deal with prepaid consumer disputes during the epidemic, Chen Yinjiang made the following suggestions:
Operators should operate in good faith and law, and take the initiative to assume social responsibility. The operator is the first person responsible for safeguarding the legitimate rights and interests of consumers. The more it is in a special period, the more it is necessary to strictly fulfill its legal responsibilities. During the suspension of business, operators should maintain regular contact with consumers through official corporate websites, WeChat, Weibo, etc., promptly release corporate dynamic information, strive to eliminate consumer concerns and worries, and treat consumers in a reasonable and timely manner. Appeal to strive to minimize consumer losses.
Relevant departments should strengthen supervision and management and respond to social concerns in a timely manner. During the epidemic prevention and control, the relevant departments should not only increase the daily supervision, but also actively collect information on the business entities that need to suspend business due to epidemic prevention and control, and get in touch with their responsible persons to communicate the business situation of the enterprise to prevent group visits and group complaints. . Once an enterprise is found to be suspected of illegal transfer or misappropriation of advance payment, it must be dealt with strictly and quickly, and effective measures must be taken in a timely manner to minimize consumer losses and negative impacts. If necessary, it must ask the public security department to intervene and crack down on the use of advance payment Illegal fund-raising and fraud activities under the guise of consumption-type consumption.
Consumers should raise their awareness of self-protection and safeguard their rights in accordance with the law. When choosing a prepaid consumption, consumers should try to choose a large-scale, long-time business, do not recharge too much at one time, and sign a good agreement with the merchant. In case of problems, consult with the merchant in a timely manner. If the negotiation fails, collect evidence in a timely manner and lodge a complaint with the consumer association or the market supervision department. If a merchant runs malicious money, he must report it to the public security department in a timely manner. In the face of the sudden epidemic, the operators have also suffered huge economic losses and after-sales pressure. They hope that consumers will be more calm, patient and understanding, reasonably express their demands, safeguard their rights and interests in accordance with the law, understand each other and resolve disputes, and work together to combat the epidemic.
The issue of prepaid consumption is not a product of the epidemic period and needs to be addressed at its source. In recent years, prepaid consumption has been a hot and difficult issue for consumer complaints, mainly related to incomplete laws and regulations, unclear regulatory bodies, lack of integrity and self-discipline among operators, and poor consumer self-protection. Therefore, in order to solve the problem of prepaid consumption, it is necessary to start from various aspects such as improving laws and regulations, clarifying regulatory responsibilities, strengthening supervision of prepaid funds, and establishing a credit evaluation system, and establish a prepaid consumption norm development model with complete regulations, multi-party interaction and shared co-governance as soon as possible. .