What should consumers do when faced with the “overlord clause” The
“Canada Goose” consumer rights protection incident has aroused widespread concern
□ Our reporter Zhao Li
□ Intern Yang Yinan
Recently, the rights protection incidents related to the "Canada Goose" have attracted much attention.
In October of this year, Shanghai consumer Ms. Jia bought a down jacket at a “Canada Goose” store in Shanghai for 11,400 yuan. After returning home, she found that the logo was embroidered incorrectly, the stitching was rough, and there was even a pungent odor.
When Ms. Jia asked the merchant for an explanation the next day, she was shunned by "all products sold in specialty stores in mainland China are not allowed to be returned", and then asked to issue a quality inspection certificate.
Finally, under the multiple supervision of the Shanghai Municipal Consumer Protection Committee and numerous media across the country, Ms. Jia returned the product successfully only a month later.
Similar "Overlord Clauses" have repeatedly appeared, causing consumers to criticize them.
Although Article 24 of the Consumer Rights Protection Law stipulates that “if the goods or services provided by the business operators do not meet the quality requirements, the consumers may return the goods in accordance with state regulations and the parties’ agreement, or require the business operators to perform replacement or repair obligations”, However, regulations such as "prohibition of bringing your own drinks", "disinfection of tableware charges", and "special offers and promotional items are not refundable" and other regulations still often appear in life.
"I will send some seaweed by courier, and I have to pay an extra 1 yuan to insure the price, otherwise it will not be carried. Isn't this the'overlord clause'?" In the interview, Lei Ming (pseudonym), a citizen of Fuzhou, Fujian, said of recent days What happened to him when he sent seaweed to his friend was quite angry.
In the end, in order to ship the items as quickly as possible, Lei Ming had to be "forced" to pay the 1 yuan.
Tang Tianyu (pseudonym), a citizen of Chenzhou, Hunan, also encountered this situation.
Last winter, Tang Tianyu and his friends went to KTV to sing after dinner. By the way, they packed the beer and drinks that had not been finished, but the waiter immediately rushed into the private room after seeing them drinking and ordered Tang Tianyu to drink the beer. Place the front desk, the reason is "this shop does not allow your own drinks".
"Isn't this just forcing us to buy KTV drinks in disguise? Later, because of our thirsty, we had to spend 56 yuan to buy KTV drinks." Tang Tianyu said.
"The characteristic of the'Overlord Clause' is that the operator shirks or exempts responsibility through standard clauses or store notices, notices, notices, etc., and restricts or excludes the rights that consumers should enjoy." Chen, Deputy Secretary-General of the Consumer Law Society of the Chinese Law Society Yinjiang told the reporter of "Rules of Law Daily" that at present, "overlord clauses" exist in all walks of life. For example, some stores will set up "overlord clauses" in the form of notices, notices, leaflets, billboards, etc., and transactions on some large Internet platforms. There are also many "overlord clauses" in the rules or user agreements.
The Consumer Rights Protection Law stipulates that when business operators use standard terms in business activities, they should draw consumers’ attention to the quantity and quality of goods or services, prices or fees, performance periods and methods, safety precautions, and risk warnings in a conspicuous manner. After-sales service, civil liability, and other contents that have a major interest in consumers, shall be explained in accordance with the requirements of consumers.
Operators shall not use standard clauses, notices, declarations, shop notices, etc., to exclude or restrict consumer rights, reduce or exempt operators from responsibilities, increase consumer responsibilities, and other unfair or unreasonable provisions for consumers, and must not use formats Terms and use technical means to force transactions.
Format clauses, notices, declarations, shop notices, etc. that contain the contents listed in the preceding paragraph shall be invalid.
"Actually, what we call the'overlord clause' refers to unfair and unreasonable standard clauses." Chen Yinjiang said that standard clauses can improve transaction efficiency and reduce costs, but if the standard clauses increase consumer responsibility or Restricting the rights of consumers, excluding or reducing their own responsibilities, can be regarded as the "overlord clause", which is suspected of infringing on consumers' right to fair transactions.
However, because some consumers have a weak awareness of rights protection, these "overlord clauses" have become popular.
"In reality, some consumers think that the operator has given a reminder before the transaction occurs, or think that more is worse than less, and they simply admit that they are unlucky. In fact, such clauses do not have legal effect, but because some consumers do not understand, Misunderstanding that these terms are legally valid, and thus giving up rights protection, will objectively condone the wanton and reckless behavior of businesses." Chen Yinjiang said.
Many interviewees also said that because the entire rights protection process is relatively long, the cost of rights protection is too high, and it consumes energy, they generally will not defend rights when encountering the "overlord clause" and can only endure it silently.
In this regard, Wu Jingming, a professor at the School of Civil, Commercial and Economic Law of China University of Political Science and Law, analyzed that because the "Overlord Clause" was drawn up in advance by the operators using their dominant position, consumers could not modify the "Overlord Clause" and could only choose Accept or leave, there is no third choice.
When consumers are helpless, they generally passively accept unreasonable terms imposed on them by the other party.
"For example, the format clauses that appear when downloading application software are not only long, but the text is also obscure. At this time, consumers can only click to agree. If they do not agree, they cannot use the software. This is equivalent to consumers accepting the terms All unfair regulations have been violated by the'Overlord Clause'." Wu Jingming said that the cost of illegally setting up the'Overlord Clause' is very low. The main reason for the rampant "Overlord Clause".
Chen Yinjiang suggested that the supervisory authority should strengthen the investigation and punishment of the "Overlord Clause", and if found, order corrections and punish them in accordance with the law.
At the same time, when consumers encounter the "overlord clause", they should stand up in time and say "no" and dare to defend their rights.
According to the relevant provisions of the Civil Code, consumers, as a relatively disadvantaged party, can claim that the content of the "Overlord Clause" is invalid or does not become the content of the contract.
If you cannot negotiate with the operator to resolve the dispute, you can seek help from the Consumers Association or file a complaint with the market supervision department, or you can file a lawsuit in the court.
"The'Overlord Clause' infringes on the interests of unspecified subjects. If the infringement is more serious and targets unspecified subjects, consumer associations at or above the provincial level can also be resolved through public interest litigation." Wu Jingming said.
Wu Jingming believes that the regulation of standard clauses in my country's laws has been relatively sound, especially after the Civil Code came into effect, the regulations on standard clauses have become clearer and more specific. The key to the problem lies in law enforcement and justice.
For illegal businessmen to use standard terms to conduct "overlord transactions", strict law enforcement and judicial actions must be taken to prevent consumers from the troubles of "overlord clauses."