How to solve the social governance problems of prepaid disputes
◆ Strengthen mediation and change contracts to balance interests
◆ Improve the prepaid third-party supervision mechanism
◆ Issue-oriented strengthening of relevant legislation
◆ Keep consumption vouchers for future rights protection
□ Our reporter's trainee reporter Zhao Jie Our reporter's reporter Dong Fanchao
Every weekend, Mr. Ma from a technology company in Haidian District of Beijing has to swim in the swimming pool of a nearby hotel.
Persuaded by the staff of the swimming pool, in June 2019, Mr. Ma prepaid more than 10,000 yuan to obtain a two-year swimming card.
After less than two months, he was sent to work in the field.
Mr. Ma negotiated with the hotel to request a refund of the balance in the card.
After the outbreak of the new crown pneumonia, the hotel rejected Mr. Ma's request on the grounds of operating difficulties.
Statistics from the China Consumers Association show that consumer complaints about prepaid consumption mainly include: some businesses affected by the epidemic have closed their doors and ran away, and consumers’ prepaid payments cannot be refunded; business operators change their legal representatives and newcomers ignore old accounts; consumption The operator reasonably cancels the subscription, and the operator delays or refuses to proceed without reason; sets unreasonable refund conditions and charges high handling fees.
The surge in prepaid consumer disputes has become a social governance problem.
Recently, reporters from the Rule of Law Daily went to Beijing, Zhejiang, and Jiangsu to explore the best way to solve this problem.
Intensified prepayment disputes
"Up to now, there are still 31 yoga classes I paid in advance that have not been arranged." On May 25, Aunt Yue from Quzhou City, Zhejiang Province took the owner of a fitness center and his partners to court.
On January 22, 2019, Aunty Yue hired a personal yoga instructor on the recommendation of a salesperson in a fitness center in Kecheng, Quzhou, and purchased 33 private lessons in the yoga studio at a price of 3,300 yuan, and a single class fee was 100 yuan.
According to the agreement, Aunty Yue paid the fee in advance.
Unexpectedly, only 8 days later, Yan, the legal representative of the fitness center, cancelled the fitness club.
Faced with Aunt Yue’s negotiations, Yan Mou promised that the service contract would be valid and that the newly opened yoga studio could continue to provide fitness training classes.
However, due to the prevention and control of the new crown pneumonia epidemic, the newly opened yoga studio closed down due to pressures such as rent and labor costs, and the remaining yoga class Aunt Yue has not been able to continue.
In September this year, the Kecheng District People's Court made a first-instance judgment in support of Aunt Yue's litigation request and ordered the defendant Yan to return the relevant prepaid expenses.
The reporter found that since the beginning of this year, complaints about fitness cards, education and training, and tourism in some cities in Beijing, Zhejiang and Jiangsu have increased significantly.
Since the outbreak, the Chaoyang District People’s Court of Beijing has accepted 1462 cases involving advance payment disputes, with the largest number of fitness-related cases, with a total of 250 cases, accounting for 17.09% of advance payment disputes, followed by education and training contracts and travel contract disputes. 208 cases, accounting for 14.22% of the advance payment disputes; Kecheng District Court accepted 46 civil disputes caused by advance payment, including 29 fitness cases, accounting for 63.2%; Wuxi City Court in Jiangsu Province accepted 92 advance payment disputes, of which There were 46 education and training disputes, and 43 fitness card disputes.
Mediation runs through the pre-litigation
"When handling such cases, the law-taking officer mainly considers increasing the immediate fulfillment rate, and will recommend that both parties mediate to close the case. Mediation runs through the pre-litigation and mid-litigation procedures. If the pre-litigation mediation fails to reach an agreement, it will be transferred to the case filing procedure." Luo Xin, deputy director of the court’s trial management office and research office, said that in the mediation of pre-paid fee disputes, the law officer mainly guides businesses to correctly understand the application of relevant laws. Although the store is closed or no longer operating, the customer pre-pays the service fee for services The validity of the contract still exists.
The merchant should liquidate and refund the unconsumed part of the money, or continue to perform the contract in other ways until it is completed.
“The epidemic has caused some self-employed operators to be unable to continue their operations, some defendants are unable to refund, and some defendants deliberately evaded the obligation to refund.” Chen Junyan, mediator of the Chaoyang District Court, said that in such disputes, consumers received full refunds through mediation. common.
Even if the operator is judged to give a full refund, many defendants have no property to enforce, and consumers still cannot really get a refund.
Hu Yani, director of the Trial Management Office of the Chaoyang Court, said that for contract disputes caused by the epidemic or epidemic prevention and control measures, the Chaoyang Court prudently applied force majeure and circumstance changes regulations, strictly reviewed contract termination conditions, and tried to balance the interests of the parties through contract changes.
At the same time, mediation should be strengthened to encourage and guide the parties to mutual understanding and concessions, and to share risks, to change the agreement by adjusting the contract performance period, performance method, and price amount to maintain the contractual relationship.
It is understood that at present, prepaid consumer disputes in various regions are mainly resolved through self-mediation, consumer association intervention, court mediation, and court judgments.
From January to August this year, the Chaoyang District Court concluded 893 cases involving advance payment disputes, of which 348 were judged, and 545 were closed by way of withdrawal and mediation.
Legislation to strengthen third-party supervision
"Prepaid card balances are not refundable, and it is not uncommon for people to go to empty buildings and abscond with money to some extent, which endangers social stability to a certain extent." Liu Junhai, director of the Institute of Commercial Law of Renmin University of China and vice president of China Consumers Association, believes that consumption of prepaid card balances Ownership belongs to consumers. It is recommended that the Ministry of Commerce, the State Administration for Market Regulation, banks and other departments coordinate supervision, precise supervision, and full coverage supervision to effectively protect the rights and interests of consumers.
"Prepayment is special compared to other consumption methods and must be supervised in advance." Zhu Wei, deputy director of the Communication Law Research Center of China University of Political Science and Law and member of the Expert Committee of the China Consumers Association, suggested to learn from the Taiwan Consumer Protection Association in the consumer agreement Relevant agreement, prepaid accounts should be placed in a bank or third-party custody supervision, so as to protect consumers and merchants.
Qiu Baochang, president of the Beijing Law Society's E-commerce Legal Research Institute, believes that prepaid consumption is a kind of "unlisted listing". The operation of prepaid merchants is not disclosed, and prepaid consumers cannot avoid risks without knowing the operation of operators.
Inadequate supervision may lead to illegal issues such as fund-raising fraud and routine loans.
With the surge in prepayment disputes, it is necessary to strengthen legislation, be problem-oriented, and use laws to regulate.
“At present, the prepaid card management measures only apply to corporate legal persons. It is necessary to include individual industrial and commercial households in the scope of regulation and improve the classification and supervision mechanism.” Chen Liang, a lawyer at Beijing Jingshi Law Firm, believes that the qualifications, economic strength, and Management staff's credit and other information.
It is recommended that technology empower supervision, use big data to build a cross-departmental information sharing platform, open up information such as the qualification review of the card issuer, business status and risk warning, and punishment for dishonesty, and announce it to consumers in a timely manner, and issue early warnings when necessary.
"Consumers are often at a disadvantage during the consumption process. In order to avoid unnecessary disputes in the future, consumers should carefully read the card instructions when applying for prepaid cards, do not trust the verbal promises of the merchants, and try to sign written contracts." Luo Xin suggested, Consumers should develop the habit of retaining relevant evidence materials such as consumption vouchers. Once a dispute arises, they can seek help from the market supervision and management department of their jurisdiction or seek legal means to protect their legal rights and interests.
In the event that the operator cannot be contacted or the money is running out of the way, it can also be reported to the public security organ.
A tortuous prepaid rights protection experience
□ Our reporter's trainee reporter Zhao Jie Our reporter's reporter Dong Fanchao
Recently, the boxing enthusiast Lan Jun (a pseudonym) who lives in Chaoyang District, Beijing, told a reporter from the Rule of Law Daily about his experience of defending rights in a prepaid card dispute.
On October 19 last year, the Blue Army signed an application for membership with a boxing gym and paid 5,500 yuan through WeChat. It was agreed that the card would be opened after the year.
Unexpectedly, a new crown pneumonia epidemic broke out a year later, and the gathering places were closed.
The boxing gym did not open until June 4, but the Blues did not open the card at this time.
With the impact of the epidemic and time changes, the Blues could no longer attend boxing classes, so they negotiated a full refund with the boxing gym, but were refused.
Less than a week after the opening of the boxing gym, a new outbreak occurred in Beijing.
On June 11, the boxing gym was closed again in accordance with the prevention and control requirements, and consumers were notified to open the gym on August 30.
The volatility of the epidemic has strengthened the Blue Army’s determination to refund the card.
Chen Liang, a lawyer at Beijing Jingshi Law Firm, told Lan Jun that membership cards are prepaid consumption. If the services purchased are not proportional to the payment, the rights and obligations of consumers will not be equal.
The merchant just keeps the money on the prepaid card, and the balance must be refunded regardless of the epidemic or other force majeure factors.
On July 9, the Blue Army filed a case with the Beijing Court’s electronic litigation platform.
On July 21, the Blue Army filed a complaint with the Wangjing Branch of the Beijing Chaoyang District Consumers Association (hereinafter referred to as Wangjing Consumers Association) based on the advice of the lawyer.
The staff of Wangjing Consumers Association told the Blue Army that they would reply within 45 days.
But until August 14, the Blues did not get a reply.
When I asked about the complaint process again, the staff of Wangjing Consumers Association replied: I went to the address on the complaint form twice, but failed to find the boxing gym.
The Blues said that the address of the boxing hall was marked on Tianyancha.
The complaint form contains the telephone number of himself and the legal representative of the boxing gym, but the staff of Wangjing Consumers Association did not actively communicate.
For this reason, the Blues called 12345 to complain that Wangjing Consumers' Association did not take the initiative.
On August 18, the Blue Army received a call from the person in charge of the Wangjing Consumers Association, stating that they had communicated with the legal representative of the boxing gym and the other party would contact the Blue Army.
A few days later, the Blues, who did not wait for the phone of the legal representative of the boxing gym, dialed the office phone of the person in charge of the Wangjing Consumers Association again.
After urging the legal representative of the boxing gym to no avail, the person in charge gave his phone number to the Blues.
The legal representative of the boxing gym asked the Blues to find Liu, the new shareholder of the boxing gym.
After many setbacks, the Blues contacted Liu, and the two parties agreed to meet within a week.
A few days later, the Blues finally saw Liu.
Liu told the blue army that there is an unwritten rule in the education and training industry: once the card is processed, the card will not be returned.
"The boxing gym has been established here for 5 years. It is not for nothing. The Consumers Association has no enforcement power, and there is no money in the company's account. What can the court do for me even if the enforcement is enforced?" Liu said.
The negotiation failed, and the Blue Army contacted the Wangjing Court of the People's Court of Chaoyang District, Beijing.
Chen Junyan, the mediator who undertook the matter, expressed respect for the Blue Army’s willingness to proceed, but told him that if the full refund of the judgment cannot be enforced in many cases, it is recommended to resolve it through mediation.
"During the epidemic prevention and control period, there are many prepayment disputes. This is the third fitness prepaid card dispute I received this year. Both parties can reach a settlement, but there is no full refund." Chen Junyan said.
After multi-party negotiations, on September 4, the Blue Army and the legal representative of the boxing gym reached an verbal agreement under the witness of Chen Junyan: a refund of 4,000 yuan in advance plus 3 private lessons worth 500 yuan, with no time limit for private lessons.
When they walked out of the courtroom, the Blue Army encountered Ms. Lu who came to the courtroom to file a case with thick materials.
Ms. Lu said that a year ago, she signed an agreement with a children’s English training institution to refund the balance of class hours, but after the next year, the training institution did not fulfill the agreement due to the epidemic. She had to go through legal procedures to protect her rights.