How to "not roll over" second-hand transactions?
With the rapid development of the online world, all kinds of information dissemination and exchange are also accelerating, which gives new vitality to "second-hand trading".
Nowadays, a wide variety of "second-hand trading platforms" are deeply loved by netizens because they can maximize the utilization of idle items.
However, although second-hand transactions provide convenience to users, there are often problems such as "wrong goods", shoddy goods, and concealing defects.
This edition invites several judges from Chaoyang Court and Beijing Internet Court to start with dispute cases on online and offline second-hand trading platforms, respectively, and teach you how to correctly avoid the "second-hand trading" dispute trap.
【House Articles】
After the house was sold, all accounts were not moved out as scheduled
The original homeowner was sentenced to compensation
At the end of November 2017, Ms. Fu spent 3 million to purchase a house in a community in Chaoyang under the name of a real estate brokerage company in Beijing through the intermediary service provided by a Beijing real estate brokerage company. .
At the same time, Jiang Mou negotiated with Ms. Fu and made a commitment to move all the household registrations out of the house within one year after the house was delivered.
But by the appointed day, Ms. Fu found that there was still a Peng in the house whose household registration had not yet moved out.
And Jiang ignored this and did not cooperate.
In desperation, Ms. Fu sued Chaoyang Court.
Jiang recognized the authenticity of Peng's situation, but believed that it had nothing to do with it, and stated that he had moved out of his and his three children's household registrations at the end of 2018 in accordance with the contract.
The court concluded that the two parties had made a special agreement on the issue of household registration in the contract. Now the two parties have inconsistent understanding of "all household registration". According to evidence, it can be proved that Jiang has known that there is someone else's household registration in the house, so he should bear the responsibility. The obligation to relocate all household registrations on the house has already constituted a breach of contract.
In summary, the court ruled that Jiang Mou compensated Ms. Fu for a breach of contract damages of 60,000 yuan for moving out of her account over the time limit.
[Judge's Statement]
In the second-hand housing market in Beijing, many buyers buy second-hand school district housing so that their children can obtain the qualifications for enrolling in the neighborhood. Completing the household registration procedure is an important step for such buyers to purchase second-hand housing.
However, in practice, for various reasons, the seller has not moved out the original household registration, causing the buyer to have doubts about whether the children can go to school.
Under the current legal system of our country, the moving in and moving out of the household registration belongs to the administrative management of the public security organs. If the buyer petitions the seller to move out of the household registration, it is not within the scope of the people’s court to accept civil cases, but if the house purchase contract is If it is agreed that the seller should move out of the household registration but fails to perform the contractual obligations or the performance of the contractual obligations does not comply with the agreement, he shall be liable for breach of contract such as payment of liquidated damages or compensation for losses.
Therefore, it is recommended that the buyer carefully review the legal information of the house before buying a second-hand house, such as checking whether the property owner and the seller stated in the original real estate certificate are consistent, whether the sale of the house has the consent of the co-owner, and the seller If there is another address for settlement after the household registration is moved out, if necessary, the seller can be required to cooperate with the housing management department to inquire about the housing situation, and the household registration department of the police station to find out the household registration situation. The time of household registration and the responsibility for breach of contract are used to urge the seller to perform the obligation of relocation in a timely manner.
When purchasing a school district house, it is also necessary to check whether the school district quota for the house has been used.
【Vehicles】
Millions to buy used luxury cars
Prosecution for concealing mileage was dismissed
In 2017, Xiao Feng bought a second-hand Audi R8 from Xiao Liu at a price of 1.33 million yuan. The agreement recorded that the vehicle had a mileage of 8,000 kilometers.
Later Xiaofeng discovered that the mileage of the car had exceeded 20,000 kilometers in December 2015.
Xiao Feng believes that Xiao Liu's failure to truthfully inform the mileage of the vehicle constitutes a fraud and asks for three times the compensation.
Xiao Liu argued that the battery had been out of charge due to long-term suspension of the car, and the instrument panel could not display the mileage, so the mileage on the maintenance record in December 2015 was filled in casually.
Before signing the contract, Xiao Feng has shown all the repair and maintenance records.
Moreover, the vehicle maintenance records and mileage can be queried through the vehicle chassis number, and there is no possibility of deliberate concealment or false notification.
The Chaoyang Court held that, first of all, the previous maintenance records of the vehicle showed that the original vehicle owner only drove more than 2,000 kilometers in nine months.
In December 2015, the mileage increased by 15,000 kilometers compared with 20 days ago, which is not consistent with common sense.
Moreover, the maintenance project of the car in December 2015 was to replace the battery, and Xiao Liu's explanation of the recording error was reasonable.
Therefore, the mileage in December 2015 was an incorrect record, and Xiao Feng claimed that the actual condition of the vehicle did not conform to the agreement and lacked basis.
Secondly, according to daily rules of thumb, second-hand car buyers will focus on checking the repair and maintenance records of the vehicle. The purchase price of the car in this case is as high as 1.33 million yuan. The purchaser should be more cautious. However, Xiao Feng said that he did not check the repair and maintenance records, which is contrary to common sense.
In the end, the court rejected all claims of the plaintiff.
[Judge's Statement]
In second-hand car transactions, the mileage, configuration and model of the vehicle, whether it has been repaired due to a major accident, etc. are directly related to the price of the vehicle, and are important matters that the seller should truthfully inform.
If the seller deliberately conceals or falsely informs it, it constitutes fraud, and the buyer can apply for cancellation of the contract and compensation for losses.
However, the buyer bears the burden of proof for the fact of fraud. The proof items mainly include the inconsistency between the agreed vehicle condition and the actual delivered vehicle condition and the seller's knowledge of the inconsistency between the two.
According to Article 86 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation", the proof of the fact of fraud needs to meet the standard to exclude reasonable doubt.
This undoubtedly puts forward higher requirements for the buyer's proof.
In this case, the buyer failed to submit sufficient evidence to prove that the actual mileage was inconsistent with the agreement.
In terms of the seller’s subjective fault, the vehicle’s previous repair and maintenance records have recorded the number of kilometers, and the repair and maintenance records are the information that the buyer of the second-hand car should focus on. The buyer said that it did not check, which is contrary to common sense and difficult to be accepted by the court.
Therefore, through this case, the second-hand car transaction subject, especially the buyer, must be clarified in written form when signing the sale and purchase contract. Pay attention to the appearance of the car and the maintenance records before signing the contract to verify the actual condition of the car. Consistent with the agreement, these will effectively help the buyer complete the burden of proof and safeguard its own legitimate rights and interests.
【Stamps】
Appreciation of more than 700,000 investment stamps
Uncle was shocked to be defrauded to make a claim
From mid-2016 to 2017, under the promotion of the manager of Company Z, Uncle Sun purchased various philatelic products such as "Public Welfare Monkey Films" and "Zheng Banqiao" for a total of 768,000 yuan.
Subsequently, Company Z issued a purchase list for Uncle Sun, and promised to arrange for the aforesaid philatelic products to be listed and traded in the custody of cultural exchanges (including Jilin Cultural Exchange, Hebei Cultural Exchange, Nanfang Cultural Exchange, Nanjing Cultural Exchange, etc.) Company Z or Uncle Sun opens an account and sells it on the electronic disk. After selling, the value can be increased exponentially to make a profit.
However, Company Z has not kept the philatelic products for listing and trading in the custody of the Wen Stock Exchange, and later evaded the problem on the grounds of employee training, such as closing down and suspending business and changing the legal representative.
Uncle Sun believed that the philatelic products he purchased sold by Company Z were sold at a price that was ten times higher than the actual price, and he did not fulfill his promise, causing him huge economic losses.
Uncle Sun claimed to have been deceived, but after the report failed, he sued the Chaoyang Court to cancel the contract and filed a lawsuit: recovering 768,000 yuan of postal products.
The court found that the sale of the stamps involved in the case to Uncle Sun by Company Z on the grounds of escrow transactions constituted fraud.
Therefore, it was judged that Company Z should pay Uncle Sun RMB 768,000 in postage money, and Uncle Sun returned the relevant stamps to Company Z at the same time.
[Judge's Statement]
Although the Civil Code provides remedies for victims of fraud, filing a lawsuit to resolve disputes like Uncle Sun will also cost a lot of time and cost. So here are some tips: First, be wary of the so-called “high returns” and don’t believe it. "Pieces will fall in the sky", carefully choose products or services that claim to be guaranteed and profitable, and learn to refuse temptation.
Second, the social development is changing with each passing day, all kinds of new things are emerging, and the ability to distinguish between the authenticity of information is relatively poor, which makes the elderly easy to be deceived. It is recommended that the elderly communicate with their children more about things they do not understand to avoid falling into traps.
Third, if the elderly want to invest, they must sign a written contract, carefully check whether the terms of the contract are consistent with the other party’s publicity, promptly ask the other party to explain the terms that they don’t understand, and sign the contract carefully.
Fourth, when signing a contract, the elderly must review the identity and qualifications of the other party to confirm whether the other party has the ability to perform the contract effectively and establish risk prevention awareness.
[Clothing articles]
Buying second-hand clothes meets counterfeit "hanging people" to vent disputes
Wang purchased a certain brand of clothing from Yu through a second-hand platform, but after receiving the goods, he believed that the purchased clothing was not genuine, so Wang demanded compensation from Yu.
After being rejected, Wang published the product on the second-hand platform account, and the product details showed "Free delivery. The scammer just bought...the imitation and imitation, say three times", and attached a screenshot of Yu's homepage on the second-hand platform. And pictures of clothes purchased.
Later, Yu also posted products on his account, using "Mandarin Duck Thief" and "Professional Reviewer" to describe Wang, and at the same time disclosed Wang's account ID and attached a photo of Wang and his family. The page showed the price of the product. It is 0.1 yuan.
Wang believed that Yu's act of publishing goods on second-hand platforms with pictures and texts infringed his right of portrait and reputation, so he sued the Beijing Internet Court.
On the other hand, Yu argued that Wang had “linked someone” first, and maliciously accused him of selling counterfeit goods, which had a bad influence on his reputation, and claimed that his counterattack did not infringe Wang's right of portrait and reputation and should not be liable for tort. .
The court found that Yu's behavior of selling Wang's portrait at a price of 0.1 yuan was by selling other people's portrait photos at a low price, demonizing and derogating others' personalities, and was obviously malicious; Yu only used Wang's rights to defend the rights of both parties in one transaction. The behavior shows that Wang is a "mandarin duck thief" and "professional critic" is not well-founded, which will inevitably affect others' social evaluation of Wang and constitute an infringement of Wang's right of portrait and reputation.
In the end, the court ruled that Yu issued an apology on his second-hand platform account and compensated Wang for mental damage of 8,000 yuan.
[Judge's Statement]
In judicial practice, there are cases where buyers and sellers cannot handle disputes in accordance with the law, which further triggers other violations of the law.
For example, some sellers label buyers as "professional bad reviewers", some buyers post false negative reviews, and some traders threaten and insult the counterparty in information communication.
In the process of online transactions, disputes between the parties to the transaction are inevitable. When a dispute occurs, both the buyer and the seller should actively and properly resolve the dispute to avoid escalation.
In view of the instantaneous nature and uncontrollable scope of Internet communication, when posting product information or trading reviews on the Internet, comments on the nature of other people's behavior, character and credit, etc. should be cautious and well-founded, and the portraits of others should not be ugly or defaced. .
The publication of infringing remarks by others in advance is not a legitimate reason for "similar retaliation" or publishing counter-infringing remarks.
For victims, when their legitimate rights and interests are infringed, they should collect evidence in a timely manner, defend their rights wisely, and refrain from adopting the methods of treating evil and "same state of revenge" to defend their rights.
If any infringing commodity sales information is found online, the e-commerce platform can be notified to deal with it.
E-commerce platforms generally have electronic complaint channels that are publicly announced, and notifying the platform to delete is a relatively convenient and fast way to protect rights.
If the platform is not deleted in time after the notification, it can also be sued to the court for relief.
As far as the platform is concerned, the monitoring of product information should be strengthened, and the product information that is obviously suspected of infringement should be actively intervened; merchants publishing infringing information should be dealt with in accordance with relevant national regulations and platform rules.
【Luxury articles】
90,000 to buy a second-hand watch
I know the strap is fake after receiving the goods
Xiao Wang is a registered user of the "A luxury goods" platform under the name of A company. He fancyed the watch involved in the case at the head office of A company. The website page displayed the fidelity, professional appraisal, and the strap material is crocodile leather.
Xiao Wang consulted with the customer service staff of Company A on WeChat about the details of the product. The customer service staff made it clear that they would not sell fakes, so Xiao Wang placed an order on the same day and spent more than 90,000 to buy the watch.
However, after receiving the goods, Xiao Wang found that the strap of the watch was not the alligator leather described on the website details page, and the strap number was inconsistent with the strap number in the product details.
Xiao Wang immediately contacted Company A. After internal confirmation, the customer service staff clearly admitted that the strap was replaced later.
Xiao Wang believes that when company A sold the watch involved in the case, false propaganda constituted fraud, so he filed a lawsuit with the Beijing Internet Court, requesting that company A be ordered to refund more than 90,000 yuan of the goods and be compensated at three times the price of the goods.
Company A argued that it did not make false publicity and that there was no fraud, and that it was subjectively in good faith to replace the severely worn straps for customers in accordance with industry practices.
The court determined that the fact of replacing a non-genuine watchband should be notified to consumers in advance. Company A concealed the fact that the watchband of the watch involved was counterfeit and was not a genuine product of a certain brand, which caused Xiao Wang to make a false statement, which was a fraud. .
Therefore, both parties were judged to return the goods for a refund. At the same time, company A promised to compensate Xiao Wang more than 8,000 yuan based on the price of the same genuine strap of the watch involved and the new standard of 95 when selling the watch involved.
[Judge's Statement]
Luxury goods are favored by consumers because of their uniqueness and collection value.
With the improvement of people's living standards and changes in consumption concepts, luxury consumer groups continue to increase, and luxury online trading platforms have also emerged.
While enjoying the convenience of online transactions, consumers must also guard against the shopping risks involved. In particular, buying second-hand luxury goods online is more risky than general shopping.
For sellers, a luxury product is more than just a commodity. What they value more is the perfect display of a craft or culture and the value experience it brings.
Merchants should follow the principles of voluntariness, equality, fairness, honesty and credibility in such transactions, promote their products objectively and truthfully, fully guarantee consumers’ right to know, and clearly explain and explain any replacement parts, accessories, etc. Take pictures and display, to ensure that the goods are genuine and at a reasonable price, for consumers to choose.
For buyers, when buying second-hand luxury goods online, they must first have a full understanding of the seller on the platform, carefully read the seller’s service description on the platform, and have a clear understanding of the market conditions and details of the purchased products. From time to time, go to the physical store for physical comparison.
In addition, online transactions must also pay attention to the preservation of electronic evidence, and actively protect their own legitimate rights and interests when their rights are infringed.
【Electronic Products】
Selling second-hand "problem" computers
Seller convicted of fraud
When Liu browsed the product through a second-hand app, he found that Xiao Chen was selling his laptop. After communication, Liu learned that the computer was officially purchased by Xiao Chen from a certain brand. The appearance was intact and the number of charging cycles was only 80, which is normal. Using it, Liu placed an order.
But after receiving the goods, Liu found that the appearance of the computer was severely worn and could not be used normally. After being sent to a certain brand for after-sales testing, it was found that the internal battery of the computer was swollen, there were unofficial dismantling and modification and non-original parts, and normal after-sales service could not be provided.
Liu believes that Xiao Chen is concealing facts and telling false information, and his behavior constitutes fraud, so he requested the court to order Xiao Chen to return the goods for a refund and compensate three times the purchase price.
Xiao Chen argued that he was not a business operator in the sense of the Consumer Rights Protection Law, and that he was only dealing with second-hand items on a second-hand trading platform, and there was no profit behavior. Second-hand goods were different from first-hand products with quality assurance, and he requested that his claim be rejected .
The Beijing Internet Court found that through his online platform account, Xiao Chen sold a certain brand of computer and other electronic equipment for many times. It was not accidental and a small amount of idle items were handled, which exceeded the reasonable scope of ordinary second-hand idle items and was sustainable for the purpose of profit. The intention of selling goods for profit is no different from that of e-commerce operators in the usual sense.
He concealed facts to inform Liu of false information, causing Liu to fall into the wrong perception and conclude a transaction with him, which constituted fraud.
The court ordered Xiao Chen to return the goods for a refund and compensate for three times the purchase price, totaling 26,000 yuan.
[Judge's Statement]
With the increasing diversification of online transaction methods, the problem of fraudulent consumers exposed in the transaction of second-hand idle goods has attracted increasing attention.
At present, many second-hand transactions show professional characteristics. Second-hand product sellers sell goods through online platforms many times or continuously, instead of accidentally handling idle items in a small amount, which exceeds the reasonable scope of ordinary second-hand idle items processing, and has the purpose of profit The intention of continuously selling goods to the outside world for profit, at this time second-hand product sellers are no different from operators in the usual sense, and they should bear the responsibilities and obligations stipulated in the Consumer Rights Protection Law.
The risk of second-hand transactions is relatively high. It is recommended that consumers understand the product information in detail before purchasing, pay for the goods through the formal payment channels designated by the platform, and keep relevant evidence materials.
After a dispute occurs, rights shall be safeguarded in accordance with the law through mediation, complaints, and litigation in a timely manner.
In addition, consumers should pay attention to whether second-hand product sellers have repeatedly operated and sold related products when collecting evidence for second-hand transaction rights protection. Such evidence can be retained. Subject to legal requirements, they can follow the provisions of the Consumer Rights Protection Law. Operators are required to increase compensation for the losses suffered by consumers in accordance with the requirements of consumers. The increased amount of compensation shall be three times the price of the consumer's purchase of goods or the cost of receiving services; if the increased amount of compensation is less than 500 yuan, it shall be 500 yuan.
At the same time, for second-hand trading platforms, complaints and reporting channels should be improved as soon as possible, strengthen the management of users on the platform, and create a legal and orderly business environment.
【Pets】
"Ferret" becomes "Mink"
Online second-hand pets are also "counterfeit"
Ms. Zhao asked the seller Cai on a second-hand platform about the "Swimming Mink Baby 588 Free Shipping". Cai introduced that the animal sold was not the animal shown in the product video. It was actually a ferret and did not bite. Human and very docile.
After that, Ms. Zhao bought the pet for 400 yuan, and paid another 50 yuan for shipping after receiving the goods. Cai also reminded Ms. Zhao, “After receiving the mink, please rest, don’t move it, don’t play with it, just received it. The baby needs rest because of long-distance transportation and physical strength."
Soon after, Ms. Zhao learned that the pet she had bought was not a ferret but a mink. When discussing the return of the pet with Cai, the other party replied that the local collectively referred to the white mink as "ferret", so there is no problem with pet mink.
In the meantime, Ms. Zhao's boyfriend was scratched in order to catch the mink that ran out of the cat cage.
After the negotiation failed, Ms. Zhao sued the Beijing Internet Court for compensation for her losses.
The court held that when Mr. Cai sells mink animals, he should have a certain understanding of the breeds and habits of mink animals, but he still informed Ms. Zhao that the animals he sold were “ferrets” and had a gentle temperament, and had deliberately deceived subjectively and implemented corresponding measures. Fraud.
And when Ms. Zhao was clearly told to rest after receiving the goods and had negotiated to return the animal involved, she still vacated the cage and caused her boyfriend to be bitten. It was also at fault.
Therefore, the court ordered Cai to pay three times the compensation and pay part of the medical expenses.
[Judge's Statement]
Today, when online shopping is extremely developed, it is not uncommon to buy and sell live animals through second-hand trading platforms, but the following issues should be paid attention to when conducting such transactions:
1. No illegal sale or purchase of state-protected wild animals.
Many people like to buy and sell live animals as pets through the second-hand trading platform, but the sellers of the second-hand trading platform are mostly individuals, and they do not have special business qualifications. Some of the animals sold are wild animals that are hunted or artificially bred, which belong to the national key protected wild animal.
The "Wildlife Protection Law" stipulates that the sale, purchase, and use of national key protected wild animals and their products are prohibited; at the same time, online trading platforms, commodity exchange markets and other trading venues are prohibited from providing trading services for such illegal acts.
Therefore, selling or buying wild animals under key national protection on a second-hand trading platform constitutes an illegal transaction.
2. The subjects of the second-hand trading platform are more diverse and the applicable laws are more complicated.
Different from general e-commerce platforms, there are both buyers and sellers who occasionally transfer personal items on the second-hand trading platform, as well as operators and consumers who specialize in trading activities for many times. The buyers and sellers who occasionally transfer items establish a transfer contract, which applies to the contract. The relevant provisions of the law; and the establishment of a consumer contract between the operator and the consumer, and the law on the protection of consumer rights can also be applied.
For example, in this case, the defendant sold to the plaintiff the mink that was not suitable for keeping as pets, which was falsely referred to as "tender temperament" ferrets, which constituted a fraud. At the same time, it confirmed that the defendant was an operator who frequently sells mink animals. Punitive damages and support.
3. The risk-taking issue of trading live animals on the second-hand trading platform.
During the transaction, the risk of illness and death of animals during transportation is relatively high.
Live animal transactions through second-hand platforms are generally regarded as delivery when the purchaser receives the animal. The risk of damage or loss of the previous animal is generally borne by the seller, and the purchaser shall be borne by the purchaser after receiving the goods.
For example, in this case, although the plaintiff applied to the defendant for the return of the mink after receiving the mink, and the reason for the return was valid, the mink died before the return, and the plaintiff should bear the risk of the mink's loss. Therefore, the judgment did not support the return of the plaintiff’s payment.
This edition / our reporter Wang Jing