Be careful of the "pits" in the education and training contract
In education and training complaints, the problem often encountered is that when consumers make a refund request, the operator will come up with a format contract to defend, and the clauses contained in it are unfair to consumers.
Recently, the Ministry of Education and the General Administration of Market Supervision issued the "Notice on Centralized Rectification of Off-campus Training Institutions Utilizing Unfair Format Clauses to Infringe Consumers’ Rights and Interests" to increase the use of format clauses to exempt training institutions from their own responsibilities and increase consumer responsibilities. , Investigation and punishment of behaviors that exclude consumers' legal rights.
As a result, the protection of consumer rights in education and training has once again attracted public attention.
my country’s laws have strict restrictions on standard contracts
When consumers sign contracts with education and training institutions, training institutions often come up with densely packed format contracts. Especially with the rapid development of online platforms, many organizations even sign format clause contracts directly with consumers through the Internet.
The so-called standard clauses are clauses that are drawn up in advance by the parties for repeated use and are not negotiated with the other party when the contract is concluded.
The contract law of our country stipulates that if a contract is concluded with standard terms, the party providing the standard terms shall determine the rights and obligations between the parties in accordance with the principle of fairness, and adopt a reasonable method to draw the other party’s attention to clauses that exempt or limit its liability, in accordance with the requirements of the other party , To explain the clause.
The standard clause is invalid if one of the following situations occurs: one party enters into the contract by fraud or coercion, harming the interests of the state; malicious collusion, harming the interests of the state, the collective or a third party; covering up illegal purposes in a legal form; harming the public interest ; Violation of mandatory provisions of laws and administrative regulations.
The exemption clause in the contract that caused personal injury to the other party, or caused the other party's property damage due to deliberate or gross negligence is also invalid; or if the party providing the standard clause exempts its liability, aggravates the other party's liability, or excludes the other party's main rights, the clause is also invalid.
If there is a dispute between the parties on the understanding of the standard terms, they should be interpreted according to their usual understanding.
If there are two or more interpretations of the standard terms, an explanation that is not conducive to the party providing the standard terms shall be made.
If the standard terms and non-standard terms are inconsistent, the non-standard terms shall be adopted.
my country’s Consumer Rights Protection Law also stipulates that business operators shall not make unfair or unreasonable provisions to consumers in the form of standard contracts, notices, declarations, and shop notices, or mitigate or exempt them from harming consumers’ legitimate rights and interests. civil liability.
The forthcoming civil code specifically proposes that if the party providing the standard terms fails to perform the prompting or explanation obligation, causing the other party to fail to pay attention to or understand the terms that are of great interest to it, the other party can claim that the terms are not part of the contract.
It can be seen that if education and training institutions violate the above-mentioned laws and regulations and sign standard terms with consumers, consumers can require them to bear corresponding responsibilities in accordance with the above-mentioned laws and regulations.
The contract law stipulates that the parties may terminate the contract in any of the following circumstances: the purpose of the contract cannot be achieved due to force majeure; before the expiration of the performance period, one of the parties clearly expresses or shows by its own behavior that it will not perform the main debt; one of the parties delays the performance of the main debt , Has not been performed within a reasonable time limit after being urged; one of the parties delays in performing the debt or has other breaches of the contract that makes it impossible to achieve the purpose of the contract; other circumstances stipulated by law.
After the contract is terminated, if it has not been performed, the performance shall be terminated; if it has been performed, the parties may request restoration of the original status, take other remedial measures, and have the right to claim compensation for losses, based on the performance and the nature of the contract.
According to the above-mentioned laws and regulations, when their legitimate rights and interests are harmed, consumers can request the cancellation of the training contract or agreement between the two parties in accordance with the law and request the refund of the corresponding fees.
So, when dealing with off-campus education and training institutions, which "pits" do consumers often fall into?
"Pit" one
Agreement "No refund"
Mr. Xu signed a training contract with an education consulting company. The two parties agreed: Japanese courses have 6 levels, and the tuition fee is 31800 yuan; this is a special offer contract specially approved by the operation director, and it is non-refundable and non-transferable. If it is triggered by major force majeure factors For refunds, students need to bear 30% of the total contract price for handling fees and liquidated damages and deduct the filed price of the National Development and Reform Commission of the higher level. If the level is less than the entire level, the entire level will be deducted.
After the contract was signed, Mr. Xu paid the training fee as agreed, and was unable to continue the training after three classes due to work reasons. He repeatedly asked the education consulting company to cancel the contract and refund the unused tuition, but was rejected and both parties went to court.
Upon trial, the court held that the standard clause on the refund conditions in the training contract involved obviously aggravated Mr. Xu’s liability and confirmed that the clause was invalid.
After the contract is terminated, the education consulting company should refund the training fee based on the number of courses purchased by Mr. Xu and the number of classes.
Judge clarifies doubts
When signing a contract, consumers usually do not read the contract terms carefully before signing for confirmation.
These education and training contracts often stipulate "no refunds" or other restrictions on refunds, and no reasonable methods such as bolding or blackening are used to remind consumers. This clause essentially excludes the main rights of consumers, Exempt from the responsibility of education and training institutions, and fail to provide effective prompts, generally can be deemed invalid.
"Pit" Two
Prepaid
Mr. Li signed a "Membership Service Agreement" with an early childhood education organization, agreeing to provide children with 106 lessons in music, art, and English. The agreement expires on September 28, 2021, and the total cost is 17,345 yuan.
Unexpectedly, a month later, the early education institution sent a "Letter to Member Parents" through the customer service WeChat, informing "the direct store is closed and the course is suspended".
Mr. Li couldn't get in touch with the early education institution, so he had to appeal to the court.
The court found that the early education institution had clearly stated that it had not fulfilled the main debts. Mr. Li's request to terminate the service agreement between the two parties had a factual and legal basis. After the two parties terminated, the early education institution should refund Mr. Li's unused class hours.
Judge clarifies doubts
Prepaid consumption is a marketing model commonly used by business operators nowadays, that is, consumers pay a certain fee to the business in advance before the actual consumption, and then the business provides the corresponding goods or services.
Under normal circumstances, operators enjoy certain price concessions to consumers in this way, but at the same time, consumers often take greater risks.
In the education and training contract disputes, more than 90% involve prepayment. Most consumers are attracted by the preferential information of education and training institutions. They pay a large amount of prepayment in advance, and often through WeChat, Alipay and other channels. The training institution did not provide a formal invoice or contract.
Some consumers encounter training institutions "run away" after paying the advance payment.
Such situations often involve a large number of people. If the circumstances are serious, the person in charge of the training institution may bear corresponding criminal responsibility.
my country’s Criminal Law stipulates that anyone who illegally absorbs public deposits or absorbs public deposits in a disguised form that disrupts financial order shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and a fine of not less than 20,000 yuan but not more than 200,000 yuan; a huge amount or other serious circumstances Those who are sentenced to fixed-term imprisonment of not less than three years but not more than ten years, and a fine of not less than 50,000 yuan but not more than 500,000 yuan.
If a unit commits the crime mentioned in the preceding paragraph, the unit shall be fined, and the person in charge and other persons directly responsible shall be punished in accordance with the provisions of the preceding paragraph.
In addition, in addition to protecting their rights and interests through litigation, consumers can also lodge complaints with market supervision departments and consumer associations.
"Pit" Three
Validity period
Ms. Wang signed an agreement with an art training institution (Party A), agreeing to provide art training courses for Ms. Wang's son (Party B). A total of 70 sessions, including 10 free lessons, are valid from December 3, 2017 to 2018 On December 2nd of the year, the total class fee is 10,500 yuan.
The agreement also stipulates: “If you are unable to attend classes for more than 2 weeks due to special reasons, Party B shall apply for a'long vacation application' at the front desk of Party A and extend the validity period of the course accordingly. Party B shall apply for one or more long vacation applications, and the total extension period shall not exceed One quarter of the validity period of the course. If Party A terminates the agreement before the expiration date, it must submit a written application to Party B. The application for refund must meet the following conditions: the cancellation agreement must be within the validity period of the course, and no refund will be given for unconsumed class hours after the expiration date "In November 2019, the training institution was closed, and Ms. Wang's son still had 46 lessons left, including 10 free lessons.
Ms. Wang requested the cancellation of the agreement between the two parties and a refund of 7,000 yuan in class hours.
The training organization believes that Ms. Wang’s contract has exceeded the performance period, she has not applied for a long vacation, and the course extension period has exceeded the agreed validity period, so she does not agree to refund the fee.
After trial, the court held that prepaid consumption is a one-time payment and performance in installments, and the full performance of the contract is delayed.
According to the relevant regulations on the management of commercial prepaid cards, the validity period of registered cards should not be set, and the validity period of unregistered cards shall not be less than 3 years.
Card-issuing companies or card-selling companies shall provide supporting services such as activation and card replacement for bearer cards that have a fund balance beyond the validity period.
In this case, the agreement signed by the two parties conformed to the registered card prepaid consumption model, and the course validity period should not be set. The training institution should refund the course fees that Ms. Wang did not consume.
Judge clarifies doubts
Many education and training institutions set a course validity period when signing a contract with consumers, and they agree that both parties will complete the training within a certain period of time. However, consumers often encounter various situations that make it impossible to complete the course as scheduled.
At this time, some consumers will choose to negotiate an extension. The training organization often promises to extend it verbally. However, once a dispute arises, the training organization will defend against the validity period. Therefore, consumers should pay more attention to the validity period stipulated in the contract. .
Otherwise, when a dispute occurs, due to the specific circumstances of the case, consumers may also face the risk of assuming the expiry of the education and training period and failing to perform the contract.
"Pit" Four
Give a "wrap over" promise
Mr. Peng (Party B) and an education consulting company (Party A) signed the "National In-service Graduate Exam Tutoring Package Contract", stipulating that Party A will open a national in-service postgraduate pre-examination tutoring class. Party B is based on the trust in Party A’s teaching quality and Participate in Party A’s counseling if you agree with the counseling program.
The college reported is a university, and the major is public administration.
Party A charges a fee of 51800 yuan. If Party B fails to pass the exam in accordance with the study plan provided by Party A, Party A will refund the fee.
After Mr. Peng took the exam, he failed to enter the university he expected. The education consulting company promised to make adjustments for him but failed. Mr. Peng requested a refund, but the company refused.
After trial, the court held that a legally established contract is legally binding on the parties.
The parties shall perform their obligations in accordance with the contract, and shall not modify or terminate the contract without authorization.
In this case, the contract between the two parties has clearly stipulated that Mr. Peng did not pass the postgraduate exam and the company should refund him the fee.
Judge clarifies doubts
In the education and training industry, the "package pass" agreement is very popular with consumers.
This type of agreement is usually for a certain exam. Training institutions promise to refund the training fee if they fail the exam. Consumers usually have the mentality of “but there is no loss.” This kind of “oversold” agreement is readily accepted, but often Ignore the teachers of such education and training institutions and the additional refund conditions stipulated in the contract.
If consumers blindly sign such contracts, they will not only pay time and expensive training costs, but they may also encounter the risk of training institutions rejecting refunds.
"Pit" Five
Provide "education loans"
Mr. Tan signed an "English Course Registration Contract" with an English training institution, and the course fee was 46,300 yuan.
Later, he signed the "Risk Notice" to confirm his knowledge of the risks related to the tuition loan business.
After the contract was signed, Mr. Tan paid the course fee of 10,000 yuan in cash and 36,300 yuan in loan.
Mr. Tan believes that the English training institution signed a contract with him through fraudulent means, applied for a tuition installment loan without his knowledge, and requested the cancellation of the training contract signed by both parties and refund of the training fee.
After trial, the court held that the parties should perform corresponding obligations in accordance with the agreement.
In this case, the fact that both parties signed the "English Course Registration Contract" and the "Risk Notice" existed.
The existing evidence provided by Mr. Tan could not prove that the signing of the agreement and the payment of part of the course fees by way of loans were not his true intentions. He believed that Mr. Tan’s request had no factual basis and did not support this.
Judge clarifies doubts
"Education loan", that is, the payment method of instalment loans for education and training contracts, is also a way to pay for education and training expenses that has emerged in recent years. The specific payment mode is that education and training institutions sign education and training contracts with consumers. The tuition loan is paid to the education and training institution, and then the consumer, the loan applicant, repays the loan in installments to the financial institution.
This payment method is mainly aimed at groups with high training costs and limited funding sources.
Education and training institutions often emphasize that the use of education loan payment can reduce the pressure of one-time payment of training fees, and usually use "interest-free" benefits to attract consumers, but it weakens the loan attributes and risks of education loans themselves. It is also difficult to prove that the educational institution is misleading or induced.
Because the act of lending and the act of participating in training and education are two independent legal relationships, consumers still need to pay the corresponding loan and interest to the financial institution that provides the loan when they are unable to obtain training or have disputes with education and training institutions.
Legal advice
When consumers choose education and training institutions, they must make rational choices based on their own needs and increase their risk awareness.
Full investigation and understanding of the credit status, business reputation, teacher qualifications, teaching ability, etc. of the training institution can be conducted through the credit investigation system, judgment documents, publicity of the industrial and commercial administration agency, and on-site inspections.
Training institutions usually provide format contracts, especially when signing on an online platform, consumers must carefully read the contract agreement and fully understand the content of the contract, including the cost of training and the payment method (either cash, online payment or loan, etc.), The method of training (online or offline, one-to-one or one-to-many), training location, refund conditions, etc. should all be noted, and all the publicity or promises of some educational training institutions should be clearly written into the contract.
In important links such as payment, negotiation, change, etc., consumers are better to keep the corresponding bills and written traces, have the awareness of evidence collection and storage, make records of the checking of class hours, and pay attention to whether the main body of the education and training institution has changed.
(Author's unit: People's Court of Chaoyang District, Beijing)