Is prepaid consumption of swimming card fitness card beauty card a pit?
For fitness cards, beauty cards, swimming cards, registration training, etc., consumers need to pay a certain fee before enjoying the service. This kind of prepaid consumption is favored by consumers due to its advantages such as large discounts and convenient payment.
However, the overlord clauses such as "No refund for card transfer" and "No refund once sold" have also been criticized. It is even more nerve-racking for some merchants to shut down, transfer or even "off the road" in the middle of the business.
How to crack it?
In order to guard against sales routines and avoid long-term large prepayments, this edition specially invited judges to interpret them with actual cases.
Gym "Run Road" members demanded a refund but were rejected due to insufficient evidence
Case number one
Consumer Ma and more than 30 colleagues applied for membership cards at a fitness resort center, but the two parties did not sign a written contract when they applied for the card.
Until one day, Ma and others came to the company for consumption and found that the door was closed and the words "reorganize and close business" were written on it.
After calling the police, the police informed that the fitness club had been closed and moved away, and dozens of people had already called the police.
Therefore, Ma and others went to the court to order the company to refund the membership fee.
During the court hearing, Ma and others could only provide the membership card as evidence, the payment receipt has long been lost, and the defendant has already "run away" with money and did not appear in court to respond.
In the end, the court rejected the plaintiff's claim because it was unable to clarify the content and amount of the contract.
Judge's statement
Judge Zhang Pengfei of the Beijing Shunyi Court explained that the consumers and operators of fitness clubs have unequal economic strength and asymmetric information. Once a dispute occurs, it is more difficult for the consumer to provide evidence.
At the same time, the corresponding laws and regulations are currently not perfect. For consumers, litigation costs are relatively high and it is difficult to win the lawsuit. Once the business “runs away” with the money, there is no way to find the whereabouts.
Conflicts among shareholders cause fitness card invalidation, more than 300 card holders defend their rights
Case two
A fitness company sold fitness cards to more than 500 fitness enthusiasts from 2016 to 2017 and charged membership fees.
In October 2017, the company closed its business due to conflicts between shareholders. One of the shareholders closed the gym door and obtained a business license on the grounds that the other shareholder’s money went away. This resulted in members having nowhere to exercise and the membership card The amount cannot be consumed.
More than 300 members, including Li, sued the Shunyi Court, demanding the termination of the contract with the defendant and the refund of their unconsumed membership fees.
After hearing this series of cases, the court supported the plaintiff’s claim and ruled that the fitness company would return the balance in the membership card that the claimant had not consumed.
Judge's statement
Zhang Pengfei said that after summarizing the main reasons for the frequent occurrence of fitness disputes, it can be found that operators often set unfair trading conditions in the pre-drawn membership manuals, member instructions and other format terms. No transfer, or refund or transfer after deduction of high fees, the balance in the card becomes invalid after the expiration of the validity period, and the membership card cannot be reported for loss or reissued.
Some operators do not even inform consumers of such restrictive clauses that are not conducive to consumers in advance, and refuse to use the above-mentioned reasons when consumers request refunds, reissues, etc.
Zhang Pengfei pointed out that because the corresponding laws, regulations and management mechanisms are not yet complete, most of the operators are able to dispose of the absorbed prepayment funds at will. Once improper use causes deterioration of the business situation or direct malicious transfer of funds, it will not only affect the actual performance of the service contract, but also It will directly result in insufficient solvency of the operators and infringe on the rights and interests of consumers.
Although the plaintiff’s claims in this case were supported, because the gym is likely to improperly use consumer advances, these cases often face greater difficulties in the execution process.
Can I get a refund if I pay more than 20,000 in advance to buy courses for my children?
Case three
Qin's mother signed the "New Student Registration Form" with an English Children Education Center in Beijing, and purchased English courses for Qin 192 times for 21,706 yuan. Company A affixed the official seal on the registration form.
Mr. Qin obtained a receipt issued by Company A and Company B.
When Qin paid the payment, Company A and Company B promised to give 16 additional lessons.
The terms of the agreement stipulate that the awarded course must take effect after the formal course is completed.
After Qin had consumed 30 courses, the English Children’s Education Center was relocated. After the relocation, Qin had 4 classes.
After the relocation, Company B issued an explanation and promise on the teaching situation after the relocation of the English Children’s Education Center campus, and made a promise on the teaching staff.
Later, Qin sued for the cancellation of the contract, refunded the training fee of 21,706 yuan, and demanded the second company to pay double the compensation on the grounds that the company A and the second company had fraudulent activities, carried out education and training beyond the scope of business, and changed the teaching location.
After the court's explanation, Qin said that if the court found that it did not constitute a cancellation, he would request the cancellation of the contract.
Companies A and B believed that the relocation was approved by the parents. After the relocation, Qin continued to attend classes, and his parents did not raise objections and did not agree to terminate the contract.
After investigation by the court, company A established company B wholly-owned, and the two companies agreed to jointly assume responsibility.
After the trial, the court ruled to terminate the agreement between Qin and Company A, and Company A and Company B refunded Qin's training fee of 17,000 yuan.
Judge's statement
According to Li Xiaoli, a judge of the Beijing Shunyi Court, a contract established in accordance with the law is legally binding on the parties.
If one party arbitrarily changes the content of the contract, causing a substantial and serious impact on the other party, and the purpose of signing the contract cannot be realized, the other party may terminate the contract and claim compensation.
In view of the fact that the content of the contract in this case was to provide extracurricular training services to minors, the two parties did not make an agreement on the teaching location, and the plaintiff requested to cancel the contract based on the change of the teaching location, and the basis was insufficient.
Although the change of the teaching location did not reach the level of cancellation of the contract, considering that Qin was still young, the changes in the teaching surrounding environment would indeed have a certain impact on him, and Qin's parents were no longer willing to continue with Qin in Company A and Company B Receiving education and training, so the contract between the two parties is ordered to be terminated, taking into account the total number of courses, the courses already taken, the time of relocation and other factors, the refundable amount will be determined.
It should be noted that if there are clauses in the enrollment agreement, such as those in the above cases, that the awarded course must be effective after the formal course is completed, the donated course time cannot be counted in the calculation of the non-attendance period.
If parents believe that the relocation of the institution seriously affects the effect of their children’s education and training, they can actively negotiate with the education and training institution, or actively raise evidence for litigation.
Can I claim invalidity of the contract if I have doubts about the qualifications of training institutions and foreign teachers?
Case four
Hu received a one-on-one English course for foreign teachers at an education and training institution, and paid 28,500 yuan for the course fee.
Hu's mother believes that the educational institution did not assign experienced teachers from the United States and Canada to teach in accordance with the contract during class, and the foreign teachers were late, left early, repeatedly absent from work for no reason, and even forced Hu to make surprise classes before the foreign teacher's visa expires. , Which caused Hu not to make any progress in English after the training, but to have a strong feeling of resistance to English learning.
Because it was believed that the training institution did not have the qualifications to teach and hire foreign teachers, the place provided for classes was not approved by the Board of Education and the fire department, and the training institution’s behavior constituted fraud. Therefore, Hu’s mother sued and requested the cancellation of the education and training agreement signed by both parties. The training fee will be refunded and the compensation will be doubled.
The educational institution argued that the foreign teacher who taught Hu meets Hu’s requirements and that the institution is legally registered with industry and commerce, legally conducts training projects, legally provides foreign teacher services, and there is no fraudulent behavior. It agrees to terminate the training agreement, but only refunds the remaining courses fee.
In the end, the court ruled to terminate the education and training agreement between the two parties, and the institution refunded Hu's remaining course fees.
Judge's statement
Li Xiaoli explained that if the training contract signed between the trainees and the educational institution is the true intention of both parties and does not violate the mandatory provisions of laws and administrative regulations, the contract is valid in accordance with the law, and both parties should exercise their rights and perform their obligations in accordance with the contract.
Educational institutions change the time and method of class without the consent of consumers, which may result in consumers not being able to accept the agreed training content, failing to achieve the expected training effect, and making the contract purpose impossible. In this case, consumers have the right to request cancellation of the contract .
Like this case, the two parties can also agree to terminate the contract.
After the contract is terminated, if it has not been performed, the performance shall be terminated, and the training institution shall refund the trainees' unconsumed course fees.
In the trial practice, it is common for the educated to provide education and training services and the specific personnel who provide education services do not have the teaching qualifications, and it is more common to assert that the training institution has fraudulent operations, invalid contracts, or rescind the contracts, but the teaching qualifications The qualifications of teachers and teachers belong to the scope of administrative license and should be managed by the administrative department. This issue generally does not affect the validity of the contract itself.
Li Xiaoli suggested that when signing an education and training contract, parents should focus on reviewing whether there is a clear agreement on teaching qualifications and teacher qualifications in the contract, so as to prevent the subsequent termination of the contract and breach of contract.
If a teacher or a teacher with a certain qualification is particularly needed for training, it must be clearly stated in the contract when signing the contract, otherwise it will be difficult to determine that the training institution has breached the contract.
Will the shareholders also be held responsible after the rent arrears and the closure of the shop?
Case five
In October 2017, Yu's mother signed the "Membership Agreement" with an early education company in Beijing, and purchased 96 swimming group lessons for Yu at a price of 28,486 yuan.
In May 2019, the agency was forced to close down due to rent arrears, and Yumou still had 52 swimming lessons that he did not consume.
In July 2019, a mother sued for the termination of the agreement with the early childhood education company, and requested the refund of the remaining class fees, and also required the affiliated company invested by the sole legal person company and the joint legal representative Ma to bear joint and several liability for compensation.
The court concluded that after Yu bought the services of the early childhood education company, the company should perform its contractual obligations in accordance with the regulations.
The company closed the shop due to the rent arrears and was taken back by the lessor. It was unable to continue to provide normal services for Yu. As a result, the service contract between the two parties could not be realized. Therefore, the contract between the two parties was terminated in accordance with the law and the 52 swimming lessons that had not been consumed were refunded. Lesson fee.
As a shareholder of the early education company, the affiliated company has not submitted evidence to prove that its property is independent of the early education company, so it shall be jointly and severally liable for the above-mentioned debts.
Judge's statement
Li Xiaoli explained that if the early education institution closes its shop due to rent arrears and other reasons, and cannot continue to provide normal education and training services, resulting in the inability to achieve the purpose of the contract, the behavior constitutes a fundamental breach of contract, and the member has the right to exercise the legal right to terminate the contract.
After the contract is terminated, the early education institution shall refund the uncompleted course fees.
In addition, according to the provisions of my country's Company Law, if the shareholders of a one-person limited liability company cannot prove that the company’s property is independent of the shareholders’ own property, they shall bear joint liability for the company’s debts. Therefore, the investment legal person of the early education institution may be required to bear joint liability in this case.
Li Xiaoli reminded that parents and friends should fully understand the qualifications and operating conditions of the institution through formal channels when choosing an education and training institution, avoid buying a large number of courses at one time, and do a good job in the preservation of relevant evidence when encountering such disputes caused by closing the store , Actively file a lawsuit to protect its legal rights and interests.
analyze
Absence of market supervision
"Financing" dues are easy to misappropriate for other purposes
According to Han Xiao, assistant judge of the Shunyi Court, there are four main difficulties in the trial of prepaid consumer disputes.
The first difficulty is the flaws in the service content agreement, and it is difficult to find the facts.
In prepaid consumption disputes, consumers are likely to trust the salesperson’s verbal promises, or form a prepaid consumption relationship only by card application, without signing a written contract, or signing a written contract with only simple agreements such as payment, service period and content , Or because of impulsive consumer psychology, the provisions on the content of the service in the contract were not carefully reviewed.
Due to the aforementioned flaws in the service content agreement, when a special situation caused by the epidemic occurs, the two parties have objections to the service content or refund matters, and consumers cannot prove the content promised by the previous merchant due to lack of favorable evidence.
Take fitness card and beauty card disputes as examples. Such disputes usually have clear facts and clear legal relationships. Most of the disputes are caused by merchants using various degrees of preferential measures to attract consumers to pay in advance, and then fail to provide the agreed service content. Most of the agreements between the defendants are verbal, and the plaintiffs can often only provide membership cards and consumer cards as evidence, which makes it more difficult for the court to ascertain the relevant facts and apply the law.
Second, disputes involving parties have obvious characteristics, and there are certain social risks.
Under the prepaid consumption model, operators often attract consumers with great price concessions.
In addition, most of the operators in such cases have branches, ranging from a few to as many as dozens. The accepted members have the characteristics of large numbers and wide distribution. The plaintiffs are mostly individual consumers, and the two sides have formed a " The pattern of a series of cases.
On the other hand, due to the lack of access to rights protection channels and difficulty in providing evidence for rights protection, ordinary consumers will "group" in the process of rights protection, resulting in obvious "stakeholders" characteristics of such disputes. Once in the litigation process, consumers' appeals are due to objective factors. If they are not supported, consumers will often transfer their dissatisfaction with the business to litigation, or even directly erupt in the group, which is easy to trigger social mass incidents and there are certain social risks.
The third is the demonstration effect of relevant subjects, and the balance of interests is not easy.
Due to the large number of consumer groups involved, relevant subjects will choose to prosecute some cases first, and the rest of the relevant parties will pay close attention. The court must comprehensively consider the legal and social effects of the case, which makes it difficult to balance interests.
The most typical practice is in the education and training contract disputes. Due to the safety needs of epidemic prevention and control, many training institutions have converted offline courses to online courses. After participating in online courses, some consumers believe that the effect is not satisfactory and request a refund.
The results of court litigation will have a certain demonstration effect on other consumers who want to refund fees and consumers who have undergone changes in training methods, which may cause a large number of lawsuits to flood into the court or affect established transaction relationships. At the same time, it must be balanced against the impact of the epidemic. The survival and development interests of operators who actively respond to prevention and control policies and strive to fulfill contractual obligations, and eliminate individual consumer factors that affect the effectiveness of training.
Fourth, the business entity went bankrupt and lost contact, and the realization of rights and interests was restricted.
Due to the impact of the epidemic, some business entities were unable to operate normally, but due to factors such as rent, manpower and other costs affecting business difficulties, they initially suspended business and actively communicated with relevant prepaid consumers, but gradually lost contact and closed down, and some operations The person directly maliciously filed the money and ran away without notifying the consumer in advance to handle the refund. If the business entity was involved in the failure of the business entity in the litigation, on the one hand, the difficulty of service and the obligation to judge are affected by the subject and the bankruptcy process. On the other hand, the progress of the case Consumers have the problem of winning the lawsuit and having no hope of execution. Therefore, it is difficult to realize the rights and interests of consumers.
A membership card can range from a few thousand yuan to tens of thousands of yuan, and the total number of membership cards is not subject to any restrictions. This prepaid consumption model has certain financing functions for operators, but due to the current related departments There are no clear regulations on such transactions, and the lack of market supervision has resulted in some operators embezzling the membership fees collected for other purposes, and there is no way for consumers to refund the fees after operating difficulties.
Weapon
Do not impulse consumption to be wary of "Overlord Clause"
Regarding how to avoid falling into prepaid consumption disputes as much as possible, the Shunyi Court recommended that consumers establish a rational consumption concept and raise their awareness of rights protection.
First of all, consumers should make a rational choice when purchasing services. Before purchasing prepaid services such as fitness cards, they must fully understand the merchant’s qualifications, reputation and card discount rules, and sign a written contract or retain other evidence.
Second, remind consumers to consume rationally, raise awareness of prevention, choose carefully, and avoid major losses due to petty gains.
Specifically, consumers should choose operators carefully when they consume. They should not rush to join the association for a momentary bargain. Instead, they should examine the main qualifications, business scale, operating capabilities, reputation and other related conditions of the operators through various channels, and apply for a card before joining the association. Always read the relevant information provided by the operator carefully, and ask for explanations and written explanations for ambiguous terms to avoid lack of corresponding evidence support for future rights protection.
Third, consumers should pay attention to retaining evidence, and must sign a written contract to clarify the relationship between rights and obligations, and be vigilant about the "Overlord" clause, requiring the operator to clarify the relevant clauses before deciding whether to sign a service contract to pay dues and apply for a fitness card .
Fourth, we must establish the awareness of rights protection. In the process of consumption, when we discover that our rights and interests have been damaged, we should promptly take up legal weapons to protect our rights and interests.
At the same time, the Shunyi Court recommended that relevant departments strengthen industry supervision.
First, it is recommended to strengthen market supervision, establish a market access mechanism, and stipulate that only operators with registered capital, large-scale operations and good credit can adopt the fitness prepaid consumption transaction model.
Secondly, formulate industry-specific model contracts to clearly set the rights and obligations of operators and consumers for different types of fitness services to ensure consumers' right to know and fair transaction rights.
Third, strengthen the information disclosure obligations of business operators, that is, require business operators to disclose to consumers important information related to the protection of consumer rights, such as service content, standards, and lease period of business premises.
Fourth, through the establishment of a reputation deposit system or third-party payment supervision and other mechanisms, strictly restrict merchants from using dues funds or provide corresponding guarantees to ensure the debt solvency of operators, thereby ensuring the actual effect of consumer rights protection and preventing operators from using Advantageous position To provide high-quality and low-quality services or close the door after pre-paid fees, infringing on the legitimate rights and interests of consumers.
Text/Reporter Song Xia