【Feature 156】Recover my advance payment
Our reporter Li Guo
"Worker's Daily" (April 20, 2022 Edition 06)
Over the past year, Wang Lin, a parent in Chongqing, has been having troubles saying that she is not too big or too small: she spent 20,000 yuan to sign up her child for an off-campus art training class, but it was only a few months after her child went to class. Training institutions closed their doors without warning and refused to refund the remaining tuition fees, citing operating losses.
There are 150 other parents who have the same troubles as Wang Lin. They are all victims of the same training institution "running away with money", and their prepaid tuition fees range from a few thousand yuan to tens of thousands of yuan.
In recent years, prepaid consumption "explosion" incidents have occurred frequently, especially in education, fitness, beauty and other industries.
Due to the imperfect laws and regulations and the high cost of rights protection, consumers often have to spend a lot of time and energy to get their own money back, and sometimes the results are not as expected.
Wang Lin and 150 parents also embarked on the road of rights protection. Therefore, Chongqing City has the first case in the country in which a consumer organization supports consumers to collectively sue for disputes over prepaid consumption refunds.
The card is still there, the store is gone
"Before the payment, I asked one more question, what if the institution closes before the child's class is finished?" Recalling the situation in early 2021, Wang Lin couldn't help laughing at herself as "God's prophecy".
Wang Lin, who lives in Qianjiang District, Chongqing, has two children in their teens. In order to cultivate their hobbies and hobbies, she chose an art training institution called "Golden Antlers Education Plaza" after several visits to let her son become eloquent. class, my daughter takes a Latin dance class.
According to the "Golden Antlers" regulations, if you do not have a prepaid card, the cost of a child's lesson is 65 yuan.
If you apply for a "lifelong learning card" of 10,000 yuan, the child can participate in relevant training unlimited times until the age of 18.
According to Wang Lin, the annual cost of a child is around 7,000 yuan based on 10 lessons per month. "Compared with this, it is really cost-effective to apply for a 'lifelong learning card'."
Wang Lin remembered that on the day she applied for the card, several parents were also choosing membership packages. In addition, the front desk staff swore that the company would have the strength and security to run a school. She did not hesitate any more to swipe out 20,000 yuan.
According to Li Li, secretary general of the Consumer Rights Protection Committee of Qianjiang District, Chongqing, "Golden Antlers" is a large-scale art training institution in the area, offering courses in eloquence, art, calligraphy, dance, taekwondo, and children's English.
In addition to the "lifelong learning card", the institution also provides prepaid cards such as annual card, summer card and spring card for students' parents to choose.
Prepaid consumption is called the new consumption model, but it is not strictly speaking.
The long-existing and widely accepted bus cards and electric cards are a form of prepaid consumption in a broad sense.
In 1998, the People's Bank of China and the former State Administration for Industry and Commerce jointly promulgated the "Trial Measures for the Management of Membership Cards", which stipulates that a membership card refers to the direct consumption certificate of the member's consumption rights determined in the form of a contract between the issuer and its members. It is clear that membership cards are only used for high-consumption sports such as golf clubs.
The "Measures" were abolished in 2007, but the membership system and its associated prepaid consumption model have been rolled out in education, fitness, beauty, catering and other industries.
Benefiting both buyers and sellers is the basis for the long-term existence of this consumption model. “Selling cards” allows merchants to quickly withdraw funds and expand the scale of investment and operation. And indeed alluring.
Wang Lin said that her son Longlong is more introverted and shy. After a few months of training in the eloquence class, Longlong has obviously become more confident, which makes her feel that the training is worth the money.
One weekend in May 2021, Longlong will go to the "Golden Antlers" class as planned.
The night before, he excitedly told Wang Lin that at the end of the last class, the teacher asked him to prepare a speech titled "My Dream".
Before leaving that day, he also reminded his mother several times to charge his phone so that he could record his performance in class.
However, when the mother and son came to the "Golden Antlers" according to the agreed class time, they saw the locked door and more than a dozen parents and students who were also overwhelmed.
When she came back to her senses, Wang Lin immediately called the teacher of the training class, and the answer she received made her feel even colder, "The teacher said that the main person in charge of the broken capital chain of the institution 'run away', and they were also owed a few months. wages".
Longlong, who was standing by the side, lowered his head, and the speech in his hand had been rubbed into disrespect.
Rights must be defended, but it is difficult to defend rights
Rights must be protected.
After learning that "Golden Antlers" was shut down and the person in charge "run away", this was the first thought of parent Zhou Wei.
Because her 12-year-old daughter Lingling was going to prepare for the Latin dance class 10 exam, Zhou Weigang paid her more than 20,000 yuan in training fees shortly before the organization "exploded".
The sudden change not only made the remaining more than 19,000 yuan in tuition fees likely to be wasted, but also made her daughter miss the opportunity to take the grade test that year.
In Zhou Wei's words, money and time are not a huge loss, but when this happens, people feel as uncomfortable as eating flies.
In the days after the incident, more than 100 parents of the victimized students joined the rights protection group.
According to statistics, more than 1,000 students failed to complete the training due to the sudden closure of "Golden Antlers", but most of the students' parents chose to "admit themselves to be unlucky" because of less loss or fear of trouble.
Rights protection is indeed a "troublesome" process.
Zhou Wei recalled that parents first approached the Qianjiang District Education Commission, but the Education Commission managed large, medium and primary schools; the competent departments of social training institutions were local market supervision departments, but "Golden Antlers" had been closed, and the relevant persons in charge could not be contacted. The District Market Supervision Bureau has no power to take coercive measures other than coordination and interviews; some people suggested calling the police, but for civil contract disputes, the public security organs are also unable to file a case for handling...
"We made many calls and went to many departments." Zhou Wei said that the parents' demands were very simple, that is, to ask "Golden Antlers" to refund the remaining training fees and make compensation according to law, "but it seems that we can't get it. statement".
In September 2012, the Ministry of Commerce issued the "Administrative Measures for Single-purpose Commercial Prepaid Cards (Trial)", which stipulates that the Ministry of Commerce shall supervise the development of single-purpose commercial prepaid card business by corporate legal persons engaged in the retail industry, accommodation and catering industry, and residential service industry. jurisdiction.
Up to now, this is the only regulation established at the national level for the management of prepaid cards in my country.
In addition, the relevant provisions are scattered in many laws and are not systematic.
For example, Article 53 of the Consumer Rights Protection Law stipulates that if an operator provides goods or services in the form of advance receipts, they shall provide them in accordance with the agreement.
If it is not provided in accordance with the agreement, the agreement shall be fulfilled or the advance payment shall be refunded according to the requirements of the consumer; and the interest on the advance payment and the reasonable expenses that the consumer must pay shall be borne.
According to Li Jian, a lawyer from Beijing DeHeng (Chongqing) Law Firm, the Administrative Measures issued ten years ago cannot adapt to the development of today's market economy.
For example, the "Administrative Measures" do not cover education, tourism, fitness enterprises and individual industrial and commercial households, which makes a large number of operators who currently promote prepaid consumption outside the regulation.
In addition, the rights and responsibilities of relevant regulatory authorities are not clearly defined, which ultimately leads to nowhere for consumers to complain.
In recent years, disputes over prepaid consumption have occurred frequently across the country.
Data shows that in the fitness industry alone, Shanghai will receive 16,000 prepaid card complaints in 2021; last year, Zhengzhou 12345 hotline also received 16,144 prepaid card-related complaints.
"Among them, some operators are indeed unable to refund the advance payment due to factors such as poor management, but there are also some operators who use standard terms and overlord terms to dig holes for consumers, and some even induce consumers to apply for cards with low price discounts. After recharging, the money 'runs away', which is suspected of fraud." Lawyer Li Jian said.
In late May 2021, Zhou Wei and other parents asked the Qianjiang District Consumer Council for help.
Considering that the parents were unsuccessful in their early efforts, the Qianjiang District and Chongqing Municipal Consumer Councils initially decided to assist the parents involved in safeguarding their rights through judicial channels.
"Because this case involves a large number of people and is one of the main pain points of current consumer disputes, we considered supporting consumers to initiate a class action lawsuit at that time," said Gu Dan, secretary-general of the Chongqing Consumer Council.
In early 2021, the General Office of the Central Committee of the Communist Party of China and the General Office of the State Council issued the Action Plan for Building a High-Standard Market System, proposing to improve the consumer public interest litigation system and explore the establishment of a consumer class action system.
But at the time of this case, there was no precedent for reference in the whole country.
In July of that year, Gu Dan, on behalf of the Chongqing Consumer Council, attended a symposium attended by relevant persons in charge of Qianjiang District Market Supervision Bureau, Consumer Council, People's Court, Public Security Bureau, Education Commission, legal experts, and parent representatives. The parties have reached a preliminary consensus on initiating a class action lawsuit.
Subsequently, the Chongqing Municipal Consumer Council first issued the "Guidelines for Supporting Consumer Class Actions" nationwide, clarifying that in cases such as prepaid consumer disputes, mass complaints, and operators' refusal to mediate, the Consumer Councils at all levels in Chongqing should Assisting consumers in collecting evidence, submitting a letter of opinion in support of the prosecution to the court receiving the case, and participating in the court trial as a supporter of the plaintiff, it provides support to consumers in 9 aspects.
In August, the Chongqing Municipal and Qianjiang District Consumer Committees formally accepted the applications of 151 parents and supported them in filing a class action lawsuit with the Qianjiang District People's Court.
class action, won
November 17, 2021, is the first court date for the "Golden Antlers" case.
Due to the large number of plaintiffs in the case, the Qianjiang District People's Court decided to open the trial in 10 separate sessions for 5 consecutive days.
Before the first day of court, more than 20 parents waited outside the courtroom early.
"Until then, some parents were still uneasy." Wang Lin recalled, "After all, no one has ever experienced a class action lawsuit."
Class actions originated in England in the 13th century and are still practiced in the United States and some European countries.
Its biggest feature and greatest deterrent effect is that as long as one person initiates a lawsuit and gets compensation, all other people who suffer from the same interests can receive proportional compensation.
In China's civil procedure law, the representative action system is similar to the class action.
In July 2020, the Supreme People's Court officially issued the "Regulations on Several Issues Concerning Representative Litigation in Securities Disputes", which is regarded as the implementation of the Chinese version of the securities class action system. cost rights protection channels.
"To a certain extent, if merchants 'run away' in the prepaid consumption model, relevant consumers and small and medium investors in securities disputes play a similar role." Gu Dan said.
As a supporter of the prosecution, Gu Dan also arrived at the court on time on the first day of the trial.
But after entering the courtroom, she found that there was no sign "supporting the complainant" at the scene, and she immediately communicated with the staff.
At first, the court was a little troubled by this out-of-the-ordinary requirement.
However, Gu Dan insisted that the municipal and district consumer committees submitted the "Opinions in Support of Prosecution" to the court as early as October, and became a participant in the trial process of the case. "If you have an identity, you should have a seat."
In the end, the court accepted the opinion of the Consumer Council, and this small episode before the trial also foreshadowed the unusualness of the first nationwide case of a consumer organization supporting consumers to collectively sue an off-campus training institution for a refund dispute.
After the attorneys representing the plaintiff and the defendant made relevant statements, Gu Dan, on behalf of the Chongqing and Qianjiang District Consumer Councils, issued opinions in support of the class action, arguing that after the defendant received the plaintiff’s training fee in advance, it neither provided corresponding training services nor Refunding the remaining training fees violates the provisions of Article 53 of the Consumer Rights Protection Law, and should bear corresponding legal responsibilities.
During the debate, in the face of the argument that the "Golden Antlers" party could neither provide training services to the plaintiff nor have the funds to refund the tuition due to poor management and the impact of the new crown pneumonia epidemic, Gu Dan also based on his understanding of relevant evidence, Questions were raised about the operation status of the training institution and the "runaway" of the relevant person in charge.
"Everyone was very aggrieved after the incident. Her words were well-founded and very relieved." Zhou Wei said that although the judge repeatedly knocked the gavel to remind him, the parents of the plaintiff in the auditorium at the time couldn't help but feel relieved. Gu Dan's statement was applauded.
On December 23, 2021, the Qianjiang District People's Court pronounced the first-instance judgment on the case and ordered the defendant to refund the remaining training fees of 151 consumers.
"Prepaid consumer dispute cases generally occur frequently in small amounts. For illegal subjects, consumer organizations support consumer collective lawsuits based on professional guidance documents, which is more deterrent." Regarding this verdict, a member of the party group and deputy court of the People's Court of Qianjiang District Chang Gong Jiehua commented this way.
On the day of receiving the verdict, Zhou Wei posted on a circle of friends: "After more than half a year of rights protection, there is finally a result." Below the text, he was accompanied by a weeping expression.
Let unscrupulous businesses "no way to run"
On the "3.15 International Consumer Rights Day" this year, the China Consumers Association released the top ten typical cases of consumer associations to maintain consumer fairness in 2020-2021. The Chongqing Municipal and District Consumer Councils supported consumers to raise this case. A class action lawsuit and a successful case were selected.
Relevant experts pointed out in their comments on the case that the "explosive" cases of prepaid consumption involved a large number of consumers, and the active and prudent handling of relevant parties played an important role in maintaining social stability and promoting consumption fairness.
"The emergence of commercial prepaid cards was originally intended to facilitate public payment and allow operators and consumers to achieve mutual benefit and win-win to stimulate consumption." In Gu Dan's view, the frequent occurrence of prepaid consumer operators "taking money and running away" will lead to It undermines consumer confidence, undermines the normal operation of honest companies, and causes bad money to drive out good money.
"Illegal operators dare to take risks because they generally have a fluke mentality that a single consumer does not have the time and energy to file a lawsuit. Supporting consumers with damaged rights and interests to file a class action is to make the merchants who want to use their brains stop thinking." Gudan said.
After the "Golden Antlers" case, the Chongqing Consumer Council gradually promoted the "Guidelines for Supporting Consumer Class Actions" throughout the city. People” appeared in court and some Consumer Councils were reluctant to participate in the litigation process due to their inaction.
In this regard, in March of this year, the Chongqing Higher People's Court and the Chongqing Consumer Council jointly issued the "Implementation Opinions on Establishing a Work Mechanism for the Management of Complaint Sources in Consumer Disputes", emphasizing the need to actively explore the consumer class action system, and clarifying that the Consumer Council can By supporting the parties in litigation by assisting in producing evidence and expressing opinions during the court trial, the people's court should fully listen to the opinions of the cancellation committee in support of the prosecution, and safeguard the legitimate rights and interests of many consumers in accordance with the law, impartially and in a timely manner.
In the month when the "Opinions" was released, witnessed by the staff of the Lizhi Street Branch of the Consumer Committee of Fuling District, Chongqing, 103 consumers received a total of more than 100,000 yuan in advance refunded by a children's photography shop in the district.
Like most "running" businesses, in January this year, this children's photography shop closed its doors without warning.
After receiving complaints from many consumers, the Consumer Committee of Fuling District contacted the person in charge of the photography shop, but the other party refused to cooperate with the mediation on the grounds that the capital chain was broken and that it was inconvenient to go out due to the epidemic.
After repeated coordination to no avail, the Consumer Council of Fuling District decided to support consumers in filing a class action lawsuit to protect their rights through judicial procedures.
Unexpectedly, after the news came out, the person in charge of the photography shop suddenly changed his attitude, not only came forward to participate in the mediation, but also raised the refund funds in a relatively short period of time.
"It can be seen that when the risk of 'running' increases and the cost increases, it is difficult for some unscrupulous businesses to assume a fearless attitude." Gu Dan said.
Up to now, there have been 10 class action lawsuits filed by consumers at all levels of the Consumer Council in Chongqing, involving 325 consumers, and the amount of the lawsuit is 3.4792 million yuan.
The nine cases that have been concluded have all been concluded in the consumer's favor.
Establish a supervision mechanism for the whole consumption cycle
The joy of winning the lawsuit did not last long, and a new problem was put in front of parents such as Wang Lin and Zhou Wei - the company that belongs to "Golden Antlers" did not have the funds to fulfill the responsibility of refunding. At present, the Qianjiang District People's Court has launched a relevant enforcement investigation. program.
"'Golden Antlers' is a typical asset-light operating institution. Teachers are hired, training venues, office desks and chairs are rented, and there is absolutely no property available for the court to enforce." After the trial, Li Li has been paying attention to the case. According to him, there are no assets that can be enforced under the name of the person in charge of the "Golden Antlers" affiliated company.
Supporting consumers to file a class action has solved the problem of the difficulty of protecting the rights of prepaid consumers to a certain extent, but this kind of post-event response is a last resort.
Comparatively speaking, the key to the healthy development of the prepaid consumption model is to effectively prevent the occurrence of related "explosion" events.
In the view of lawyer Li Jian, consumers have paid fees in advance, it is uncertain whether operators can provide agreed services, and the "one-to-many" pattern between merchants and consumers has further magnified credit risks. Advance payment third-party management and payment mechanism to ensure capital security and strengthen risk prevention and control.”
In July 2018 and April 2019, the Standing Committee of the Shanghai Municipal People's Congress and the Shanghai Municipal People's Government successively issued the Regulations on the Administration of Single-purpose Prepaid Consumption Cards in Shanghai and the Implementation Measures for the Administration of Single-purpose Prepaid Consumption Cards in Shanghai. It has become the first region in my country to regulate the prepaid consumer market with local legislation.
On the one hand, the "Shanghai Model" includes "individual industrial and commercial households" into the scope of prepaid consumption supervision, and on the other hand, it stipulates the establishment of a special deposit account for the balance of prepaid funds, which not only ensures that the prepaid funds of merchants can be used for specific purposes, but also effectively avoids the occurrence of disputes. The situation of consumers "taking up the money but not getting the money" appears.
Like Shanghai and Chongqing, various explorations have been carried out on improving the prepaid consumption model in many places in recent years.
"In the long run, in order to make consumers feel at ease, it is still necessary to promulgate laws and regulations at the national level that adapt to market development, and establish a regulatory mechanism that runs through the entire consumption cycle." Gu Dan said.
More than two months after the closure of "Golden Antlers", Wang Lin re-registered her two children for art training classes.
This time she chose to prepay for only 10 class hours.
Wang Lin said that she felt uncomfortable when she heard the word "prepayment". "If I can finally get the remaining tuition back, I don't know if it can cure this heart disease."
(At the request of the interviewee, Wang Lin, Zhou Wei, Longlong, and Lingling are pseudonyms in the article. All photos in this edition are provided by the interviewee unless they are signed.)