China News Service, April 25th (Yu Junliang Changyu) At the Shanghai Auto Show, the five-day administrative detention of the lady who defended rights on the Tesla car roof expired. The detention was lifted on the morning of the 25th, and her family members said "future Will continue to safeguard rights in accordance with the law".
Under the concern and questioning of public opinion and government departments, the "uncompromising" Tesla previously issued an apology and submitted relevant vehicle data.
Two lawyers in Shanghai gave advice on Ms. Zhang's future road to rights protection and expressed their willingness to provide charity support for her.
Attorney Gao Yongfeng, a member of the Chinese Law Society and senior partner of Shanghai Jinli Law Firm, said that consumers are in an absolute disadvantaged position in automobile quality disputes. Only by choosing the right way to protect their rights can they protect their legal rights most effectively and to the greatest extent. .
He believes that this kind of highly professional and difficult rights protection, if consumers cannot achieve effective rights protection through conventional channels, it is best to invite lawyers and professionals to intervene in time.
When communication and coordination are fruitless, it is more effective to take legal proceedings.
In response, Mr. Pan Jie, director of Shanghai Dechuan Law Firm, introduced: In product liability litigation, a special form of proof is implemented, which means that the burden of proof that should be borne by the plaintiff according to general principles is converted to the defendant.
Several provisions of the Supreme People's Court on evidence in civil litigation: (6) In infringement litigation for damage caused by defective products, the producer of the product shall bear the burden of proof for the exemptions provided by law.
He emphasized that the principle of inverting the burden of proof in product liability litigation does not mean that the victim will not bear any burden of proof in the product liability litigation.
In order for the victim to obtain compensation, he must prove that his personal injury or property damage objectively exists, and he must also prove that the damage was caused by the unqualified product quality, that is, the product defect.
Therefore, Tesla users are obliged to prove that: first, personal and property damage during their own use of the product (including purchase, borrowing or renting, actual driving, and employment); second, the damage is related to the abnormal performance of the product There is a causal relationship; third, the user has complained or negotiated; fourth, the product is effectively sealed and can be identified.
The two lawyers agreed that in the case of Tesla's rights defense, appraisal may be one of the most important factors in determining responsibility.
In the lawsuit, users should require Tesla to immediately disclose the original information of the user's driving data and make a promise that no one will tamper with it.
If it is proved that the abnormal product performance is indeed a software defect or hardware failure, the court shall support the user's claim for return and replacement and compensation.
Article 7 of the "Consumer Rights Protection Law of the People's Republic of China" stipulates: "Consumers have the right to personal and property safety when purchasing, using goods and receiving services. Consumers have the right to request goods and services provided by operators , Meets the requirements for the protection of personal and property safety.” Article 8 stipulates: “Consumers have the right to know the true conditions of the goods they purchase, use, or services they receive.” This is the legal basis for users to exercise their right to know.
The two lawyers analyzed that users directly claim compensation instead of directing claims through the right to know. Although the risk of rejection is small, it is not worth the risk.
They suggest that consumers take two steps: first claim the right to know, and then hold accountable.
After all, the trial is based on facts.
The General Administration of Quality Supervision, Inspection and Quarantine of the State Administration of Quality Supervision, Inspection and Quarantine "Regulations on Responsibilities for Repair, Replacement, and Return of Household Car Products" (referred to as the "Three Guarantees for Automobiles") within the validity period of the three guarantees for household car products and meet the replacement and return conditions of these regulations, consumers shall present the certificate The car purchase invoice, etc. shall be replaced and returned by the seller:
For family car products, within 60 days from the date when the seller issues the purchase invoice or within 3000 kilometers of mileage (whichever comes first), the family car product has steering system failure, brake system failure, body cracking or fuel leakage, consumption If the seller chooses to replace the family car product or return the product, the seller shall be responsible for the free replacement or return.
During the validity period of the three guarantees for family car products, if one of the following situations occurs and the consumer chooses to replace or return the product, the seller shall be responsible for the replacement or return:
(1) A total of 2 repairs have been made due to a serious safety performance failure, and the serious safety performance failure has not been eliminated or a new serious safety performance failure has occurred;
(2) After the engine and transmission have been replaced twice in total, or the same main parts of the engine and transmission have been replaced twice due to their quality problems, and they still cannot be used normally, the number of replacements of the engine, transmission and its main parts will not be counted twice;
(3) The same main parts of the steering system, braking system, suspension system, front/rear axle, and car body cannot be used normally after being replaced twice due to quality problems; steering system, braking system, suspension The main parts of the system, front/rear axle, and body shall be clearly indicated by the manufacturer on the three-guarantee certificate. The range of types shall comply with the relevant national standards or regulations, and the specific requirements shall be separately stipulated by the General Administration of Quality Supervision, Inspection and Quarantine.
During the validity period of the three guarantees of family car products, if the repair time is more than 35 days due to product quality problems, or the same product quality problems have been repaired more than 5 times, the consumer can present the three guarantees certificate and the car purchase invoice, and the seller is responsible for the replacement .
Whether the claim should be returned, exchanged, repaired, or infringement compensation depends on the specific mileage and actual needs of the user to buy and use the car.
However, according to the "Three Guarantees" regulations, if the car is repaired for more than 5 days, the owner has the right to request a spare car.
The two lawyers reminded that consumers can claim for mental losses. According to my country’s latest Civil Code, whether this case is a lawsuit for breach of contract of sale or a lawsuit for personal damages, users can claim mental damage. Compensation.
Article 996 of the Civil Code stipulates: “If one party’s breach of contract damages the other’s personality rights and causes serious mental damage, and the injured party chooses to request it to bear liability for breach of contract, it shall not affect the injured party’s request for mental damage. Compensation."
Regarding the choice of the court of jurisdiction, according to the Consumer Protection Law, both producers and sellers can be defendants, and consumers can treat Tesla (Shanghai) Co., Ltd. and its sellers as co-defendants.
In case of prosecution based on the cause of accident infringement, personal injury and property damage, the place where the infringement occurred (that is, the place where the accident occurred), the place where the result of the infringement occurred (in addition to the place where the accident occurred, but also the place where the rescued and treatment was performed), and the court where the defendant is domiciled Have jurisdiction and acceptance obligations.
According to the information inquired by Qixinbao, Tesla China is Tesla (Shanghai) Co., Ltd., and Tesla’s only production base in China is also located in Shanghai (Pudong New Area), so the Pudong New Area People’s Court or its superior—Shanghai The first intermediate people's court has jurisdiction.
The two lawyers took into account Tesla’s “uncompromising” arrogance and perfunctory handling attitude in other cases, considering that large companies such as Apple in the United States often impose jurisdictional objections + appeals and other delays in litigation, exhaustion of trial limits, etc. Means, it is recommended that consumers file a lawsuit for preservation at the time of the lawsuit, so as to increase the cost of delaying the response.
The two lawyers said: If Ms. Zhang needs it, they are willing to provide support for her rights protection in accordance with the law.
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