□ Reporter Jiang Dongliang and Liang Pingni
Recently, many stores of a yoga company have closed stores one after another, and consumers' rights protection demands for refunds have aroused social concern. In recent years, in the service industries such as fitness catering, beauty salon, education and training, the prepaid model has become the first choice for most businesses. However, with the development of the prepaid model, the number of "running away" incidents in the prepaid industry has gradually increased, and disputes over the protection of rights in the "difficulty of refunding" have frequently occurred. A reporter from "Rule of Law Daily" searched for keywords such as "running away" and "rights protection" on a social platform, and topics about business "running away" and "rights protection" such as "an art institution closing money and refusing to refund millions of tuition fees" and "a child's English running away" filled the Internet.
It is easy to return the card, because merchants often run away, and consumers are "unable to protect their rights", which has become a pain point for people's livelihood. In the face of the prepaid model launched by merchants, how should consumers avoid risks? Once a merchant "runs away", how should consumers protect their rights?
There are many disputes over rights protection in the field of prepayment
Ms. Li of Huaiyin District, Jinan City, Shandong Province, paid an advance payment of 55,12345 yuan to a beauty company through overdraft credit cards, online loans and other payment methods to purchase beauty products and services. The beauty company only did part of Ms. Li's massage and treatment, but no longer provided services, and cancelled the company, Ms. Li defended her rights by reporting the situation to the local market supervision administration, calling the <> citizen hotline, etc., and reported the case to the local police station, but none of them were resolved. In desperation, Ms. Li sued the Huaiyin District People's Court for a refund of the balance.
In the end, after hearing the case, the Huaiyin District Court ruled that the beauty company would refund Ms. Li the balance of 20,<> yuan.
For consumers, this prepaid consumption model is not unfamiliar in education and training, fitness catering, beauty salon, bath and laundry and other industries. The so-called prepaid model refers to the consumption model of paying fees first and enjoying services later. The prepaid model plays a role in returning funds and locking in customers for merchants, and consumers can also obtain certain discounts in this way, which is mutually beneficial to both parties, so many merchants and consumers are happy to choose this model.
Not long ago, the People's Court of Lixia District of Jinan City concluded a dispute over an education and training contract. Mr. Li purchased children's programming courses in an education technology limited company, and signed a training agreement with the company on December 2019, 12, agreeing that the learning period will be from December 22, 2019 to December 12, 22 for a total of 2021 months, and purchase a two-year course package, the number of lesson coupons is 12, and the purchase amount is 21,24 yuan. On December 192, 17050, Li transferred 2019 yuan through Alipay, and on December 12, 15, Li paid 500,2019 yuan through Alipay. Affected by a variety of reasons, the company suspended classes on November 12, 22, and could no longer provide training, Li demanded a refund of the remaining unfulfilled class hours, and because the negotiation was fruitless, Li sued the court. After trial, the district court ruled that the defendant, an education technology company, returned the course fee of 16550,2021 yuan to Li.
Why are rights protection disputes in the prepaid field frequent? Judge Wang Hui of the Huaiyin District Court briefed reporters on two reasons. First, the merchant is dishonest. When consumers consume through prepayment, most merchants will provide a form contract, but the verbal commitment of the merchant is not written, a few merchants do not sign a service contract with the consumer at all, and the consumer himself does not ask for it. When consumers ask merchants to fulfill their promises, merchants often refuse on the grounds that the contract between the two parties is not agreed, resulting in disputes. In addition, some merchants initially attract customers with better services, but when customers pay in advance, the quality of service is reduced; There are even some merchants who have no intention of long-term operation at all, just want to cheat cash through the prepaid model, and abscond with the money after reaching a certain amount, playing "human evaporation".
Second, consumers' awareness of collecting evidence is weak. According to the relevant provisions of China's Civil Procedure Law, the parties have the responsibility to provide evidence to prove their claims. As a prepaid consumer, if you claim that the merchant is in breach of contract, you should provide evidence to support your claim. However, in practice, the storage amount of the prepaid consumption model can generally only be queried in the information system of the merchant, and it is difficult for consumers to prove the amount of refund.
Businesses "run away" and consumers are unable to defend their rights
On October 2022, 10, Ms. Chen from Laixi City, Qingdao, purchased a "Super Play Treasure" amusement card for an indoor amusement park in a large shopping mall, and the counter of the mall registered the cash and issued a settlement receipt for her, stating: Super Play Treasure amusement 11 yuan 500 times. At the time of purchase, the merchant did not explain the validity period of the card to Ms. Chan, and the card face of the amusement card was not indicated. After that, Ms. Chen took the children to the playground three times.
In January 2023, when Ms. Chen brought her children here again, she was told that the amusement park had been withdrawn at the end of December 1, and at this time, Ms. Chen's card still had 2022 games (equivalent to RMB 12) unspent. Ms. Chen repeatedly contacted the mall for negotiations without success, and had no choice but to sue the Laixi Municipal People's Court.
"In such cases, it is very difficult for consumers to find a playground that 'disappears', and it is difficult to prosecute direct infringers." After Judge Shan Songyuan of the Laixi Municipal People's Court learned that the playground "ran away", the mall still had the amusement park warranty money, so he organized pre-trial mediation several times, explained the relevant provisions of the Consumer Rights Protection Law to the parties, guided the two parties to reach a mediation, and finally the mall agreed to refund the full amount of the advance payment to the consumer.
Article 53 stipulates that where proprietors provide goods or services in the form of advance payment, they shall provide them in accordance with the agreement. If the provision is not provided in accordance with the agreement, the agreement shall be performed or the advance payment shall be returned in accordance with the requirements of the consumer; and shall bear the interest on the advance payment and the reasonable expenses that the consumer must pay. Article 43 stipulates that where consumers purchase goods or receive services at exhibitions or rental counters and their lawful rights and interests are harmed, they may claim compensation from the seller or service provider. After the end of the exhibition or the expiration of the counter lease, you can also claim compensation from the organizer of the exhibition or the lessor of the counter. The organizer of the exhibition and the lessor of the counter have the right to recover compensation from the seller or service provider after compensation.
Shan Songyuan said that in the above-mentioned amusement park "roll money run" refund and rights protection case, although the amount of amusement card recharge is not large, it is related to the integrity of merchants and the vital interests of consumers. Ms. Chen purchased an amusement card and used it in the playground in the mall, and she established a consumer service contract relationship with the playground. In the case of unfinished consumption, the playground withdrew the cabinet halfway, and Ms. Chen chose to claim the refund of the advance payment from the lessor, that is, the mall, which has a factual and legal basis, and the mall can recover from the amusement park separately after assuming the liability for compensation.
How can consumers protect their rights when encountering "difficulty in refunding"
"Once consumers encounter the situation of the merchant 'running away', if the refund amount is small, it is recommended to negotiate with the merchant as much as possible to solve it, and pay attention to retaining evidence such as chat records and other evidence information communicated with the merchant." If the negotiation fails, they can complain to the local market regulatory department or file a lawsuit with the people's court to protect their legitimate rights and interests through legal means. At the same time, you can also ask the consumer association for help as soon as possible. Wang Hui said.
However, in reality, many consumers feel that they are unable to defend their rights. Wang Hui analyzed the reasons for the "difficulty in defending rights". "Consumers and merchants mostly make verbal agreements, and once a dispute occurs, it is difficult to provide evidence. Even if there is a written agreement, most of them are standard contracts, and there are many small words, and consumers will not look carefully. The consumption records of consumers are held by the operators and cannot be obtained by consumers. Wang Hui said. On the other hand, some merchants have more routines, often adding many gifts or items when paying, but they need to be discounted when refunding, so even if they refund, the amount is much lower than consumers' expectations.
"The high cost of rights protection is also a reason why it is 'difficult to protect rights'." Wang Hui said that the negotiation process often requires multiple rounds of negotiation, and most of them cannot reach an agreement, and if they enter the litigation procedure, the time limit is often longer, the procedure is more, consuming too much time and energy, and may also incur litigation costs, preservation fees, lawyer fees and other litigation costs, so many consumers consider themselves unlucky, so they give up their rights protection.
In this regard, Wang Hui reminded consumers to sign a written prepayment agreement with the operator when consuming, and be aware of the terms of the contract, especially for the contract cancellation or breach of contract liability. In the process of consumption, we should also pay attention to retaining evidence, and should not trust verbal promises. At the same time, pay attention to the pre-deposit amount is not too high, the pre-deposit time is as short as possible, although the longer the time, the higher the amount, the more benefits, but the greater the risk.
Wang Hui suggested that consumers should strictly examine the qualifications of operators, industry reputation, and working time before paying, and pay attention to the dynamics of operators in a timely manner before the end of consumption, and stop losses in time when they find signs of signs. Once encountering the above situation, you should inquire into the Consumer Rights Protection Law or consult experienced legal workers as soon as possible, carefully choose the way of rights protection, and do not blindly protect rights.
How to promote standardized management in the prepaid field? Wang Hui suggested that, first of all, measures such as limiting the amount and duration of prepayment can be adopted, such as the prepaid period of education and training contracts should not be greater than half a year or 20 class hours, and the amount should not exceed the specified amount. Secondly, to establish a prepaid fund supervision account, the operator can operate by collecting the prepayment, but the operator cannot directly collect the payment, the consumer can transfer the money to the supervision account, and the operator will withdraw the money proportionally and explain the purpose of the money. Third, strengthen supervision of business operators, for example, after consumers pay in advance, each time they make a purchase, the business operator shall issue a consumption record or consumption voucher, and may use written methods such as text messages, photos, WeChat to inform the remaining number and amount, so as to ensure that the consumption process is open and transparent. In addition, it is necessary to give full play to the functions of industry associations and administrative departments, efficiently and conveniently handle disputes over consumer rights and interests, assign more burden of proof to business operators, and reduce the cost of consumer rights protection.
"Finally, the establishment of a social creditworthiness system should be strengthened, and dishonest business operators, including business names, shareholders, legal representatives, etc., should be included in the business blacklist, and corresponding restrictions should be given in terms of registering and establishing new companies, loans, and operations. Increasing the cost of untrustworthiness is often more deterrent than simple material punishments such as fines, making operators dare not 'run away' or 'run away'. Wang Hui said. (Rule of Law Daily)