□ reporter Xu Weilun
□ correspondent of this newspaper, Qu Yejuan, Wu Yixiang
In recent years, prepaid consumption has become a popular way of consumption, and prepaid items such as "fitness card", "beauty card", "training card" and "accommodation platinum card" have emerged in an endless stream. Merchants attract consumers with prepaid offers, and often the more prepaid, the more discounts. However, the consumption model, which is supposed to be a "win-win", has generated many disputes in practice, such as "easy to pay and difficult to refund", "superficial discounts are actually at a loss" and other problems have plagued many consumers.
In view of the above situation, the judge of the Fangshan District People's Court of Beijing sorted out the relevant disputes in the field of prepayment, in order to remind merchants and consumers to enhance their risk awareness, prevent and resolve disputes, and ensure that the prepayment is implemented and the expectations are successfully realized.
The stored value is cancelled by the company for half a year
The balance of the card should be refunded
Gao spent 65000,61000 yuan to apply for a membership card at a leisure club. Later, due to poor management, the leisure club company closed the store and cancelled it, and the remaining balance of 61000,<> yuan in Gao's membership card was not consumed. Gao filed a lawsuit against Zhang, a shareholder of the club company, as the defendant, demanding a refund of <>,<> yuan.
After trial, the court ascertained that the legal representative Zhang was the sole shareholder of the club. In May 2022, Gao paid an advance payment of 5,65000 yuan to the club through the POS machine. In November of the same year, the club went through the registration cancellation procedures, and Zhang signed the company's liquidation report and the shareholder decision to cancel the company.
The court held that when a business operator suspends business, deregisters, etc., resulting in the inability to cash out prepaid consumption, it should promptly contact the consumer by telephone, text message, WeChat, etc., to inform the relevant situation. Consumers may request a refund, and business operators shall refund the balance of the advance receipts in accordance with the agreement. When the company is liquidated, the liquidation team shall also notify all known creditors of the dissolution and liquidation of the company in writing. If the liquidation group fails to perform its obligation to inform, resulting in the creditor's failure to declare its claims in a timely manner and is not repaid, the creditor may require the members of the liquidation group to bear the liability for compensation for their losses. After the company is deregistered, the consumer can take the company's shareholders as defendants and file a lawsuit with the court to recover the advance payment.
In this case, although there was no written contract between Gao and the club, it could be determined that the two parties had established a de facto contractual relationship based on the evidence provided by Gao, such as proof of payment, records of consumption frequency, and consumption deductions. In the case of the company's debts, Zhang issued a liquidation report that the creditor's rights and debts had been settled, and as a shareholder, he should bear the responsibility for repaying the company's debts. In the end, the court ruled that Zhang should return 61000,<> yuan to Gao.
The judge said after the trial that consumers should maintain a cautious attitude when spending stored value, for example, carefully verify the merchant's qualifications before applying for a card; Entering into a written agreement with the operator; Pay attention to keep consumption records, agreements, invoices and other relevant evidence, and try to let the merchant sign and confirm after each consumption, so that you know what to expect; At the same time, try to avoid large one-time deposits. Proprietors should make risk warnings in the form of written contracts for content that has a significant impact on consumers, such as setting a validity period and collecting a relatively large amount in advance.
The product is not private
Refund should be made for deregistered membership
Shen recharged 15000,28548 yuan for a membership card in a hairdresser, and paid 30,55000 yuan to buy <> scalp treatments, and the care plan was "clearing, replenishing, root-fixing, and oil-controlling kits", for which the hairdresser gave Shen a set of washing and care sets. Subsequently, Shen recharged another <>,<> yuan.
In January 2023, Shen and his daughter permed their hair at a hairdresser. Shen thought that the perming effect was not good and the service level was poor, so he immediately applied for a refund. The hairdresser agreed to refund the money, but the two parties objected to the refund amount, and Shen sued the court to request a refund of the stored value of 1,97000 yuan.
The hairdresser argued that the 28548,<> yuan was a care box purchased by Shen, which was only used by Shen and the product belonged to Shen's personal belongings. This money is not a traditional stored value consumption and should not be returned.
The court held that Shen paid a fee to the hairdresser for the stored value of hairdressing and purchased scalp care, and although the two parties did not sign a written contract, a contractual relationship had been established. The hairdresser did not submit evidence to prove that the scalp care kit provided to Shen could only be used by Shen, and the two parties did not reach an agreement on the purchase of the care kit of 28548,94600 yuan, so it was determined that Shen purchased the number of treatments rather than the care products. After deducting the cost of the free toiletry products and two scalp treatments, the court ordered the beauty salon to refund <>,<> yuan.
The judge said after the trial that in practice, there are many consumer items in the fields of beauty and hairdressing, and the corresponding advance payment is also more complicated. Disputes between consumers and merchants over the nature of payment are more common, and whether it is the consideration for the purchase of goods or an advance payment needs to be determined based on the characteristics of the goods, the use of the goods, the method of deduction, and the agreement of both parties. In order to avoid disputes over the nature of payment, business operators and consumers should sign a written contract detailing the types of consumption items and charging standards, and reasonably allocate the right to terminate, and both parties should reasonably interpret the disputed terms in accordance with the principles of equality and good faith. If the two parties cannot reach an agreement, they may apply to the consumer association for mediation, file a complaint with the industrial and commercial department, apply for an arbitral award or file a lawsuit with the court.
The beautician resigns and wants to return the card
Failure to justify a breach of contract
In 2017, Wei applied for a membership card at a beauty club. The two parties signed the "Stored Value Member Service Agreement", agreeing that Wei would become a supreme member with a stored value of 20,10 yuan, and the beauty club would give 2% of the remaining points at the beginning of each year. The points awarded by the Supreme Card every year are valid for one year from the date of accumulation of the membership card, and will be cleared before they are used up. During the performance period, if the agreement cannot be performed due to the breach of contract by one party, the defaulting party shall pay liquidated damages of <>,<> yuan.
Since then, Wei has successively purchased collagen cultivation packages, weight loss and shaping services in the beauty club. In February 2023, because the beautician who had been serving him resigned, Wei was dissatisfied with the beauty services provided by the beauty club, did not agree to continue to perform the contract, and sued the court to demand that the beauty club refund the service fee of 2 yuan.
The beauty club said that the store is now open for business and does not agree to terminate the contract. The departure of a beautician is not a reason to terminate the contract.
The court held that Wei claimed to terminate the contract on the grounds that the beautician had left the company and was not satisfied with the services provided, but failed to provide evidence to prove that the services provided by the beauty club were inconsistent with the agreement between the two parties, and that the beautician's resignation was not a statutory or agreed reason for the termination of the contract, and Wei's reason for terminating the contract on this basis could not be established.
At the same time, since the performance of the service contract must be based on the trust of both parties and requires a high degree of cooperation between the two parties, in view of Wei's clear statement that he will no longer go to the beauty club to receive services, the purpose of the contract between the two parties cannot be realized. In order to avoid the continuation of the deadlock, the court held that the rights and obligations of the service contract were terminated. The bonus points should be bundled with the stored value amount as a whole for consumption, and the amount corresponding to the bonus points should be deducted before the stored value is not consumed normally. Wei's behavior constitutes a breach of contract, and he should bear the liability for breach of contract and pay the beauty club 2,<> yuan in liquidated damages.
In the end, the court ordered the beauty club to refund the service fee of 174436 yuan.
The judge said after the trial that the two parties to the service contract are based on trust, and once the foundation of trust is broken, the performance of the service contract is prone to deadlock. Beauty, hairdressing, fitness and other service contracts have special personal attributes, and the performance of the contract requires the active participation, communication and cooperation of both parties, and should not be compulsory. Therefore, once the performance of the contract reaches an impasse and the purpose of the contract cannot be achieved, the rights and obligations of both parties should be terminated in a timely manner to avoid the "damage" of the interests of both parties due to the long-term stalemate, but the breaching party needs to bear the liability for breach of contract.
In addition, consumers shall return or pay a reasonable consideration for gifts, services or points obtained by consumers as a result of the purchase of prepaid cards when their contractual rights and obligations are terminated.
At the time of the signing, the company had withdrawn
Constitutes fraud triple compensation
In November 2022, Lan signed a contract with a physical fitness center, stipulating that Lan would pay 11,1 yuan to purchase a one-year offline physical training course at the physical fitness center. Since the contract was signed, the course has not been held. In May 2023, the Physical Fitness Center informed Lan that he could not provide offline classes at the agreed campus, and Lan could apply for a refund, or he could go to other campuses to attend offline classes or online classes.
Lan believes that the physical fitness center's unilateral suspension of local offline classes is not honest, and the offline classes of other campuses are too far away from home, and the online class training is not ideal, and asks for a full refund. The physical fitness center said that according to the contract, the refund needs to deduct a handling fee of 1000,<> yuan. Lan learned that the physical fitness center signed with him had been cancelled when the contract was signed, so he sued the court and demanded a full refund of the fee and three times the compensation.
After trial, the court ascertained that it was a branch of the physical fitness center that provided services to Lan, and that the branch had been cancelled when Lan signed the contract, and the physical fitness center had not informed Lan of the fact that the branch had been deregistered.
The court held that when the physical fitness center signed the agreement with Lan, the branch had been cancelled, but it still charged Lan a stored value fee of 1,<> yuan, and agreed that the offline physical training location was the business premises of the branch. The physical fitness center clearly knew that it could not provide offline training courses for Lan at the venue, but still concealed the fact and entered into an offline physical training contract with Lan, which constituted consumer fraud.
In the end, the court ruled that the physical fitness center should return 1,3 yuan to Lan and pay <>,<> yuan in compensation.
The judge said after the court that in life, consumers often make stored value consumption at businesses near their residences for convenience and affordability. However, there is often an "embarrassing" situation where the merchant changes the service location not long after the consumer stores the value. In practice, if the merchant knows that the rent is due and does not renew the contract, but does not clearly inform the consumer that it wants to change the location of the business, but continues to promote and make a service commitment to the consumer with the intention of continuing to operate at the original address, this behavior is suspected of fraud, and the consumer can claim treble compensation.
In order to reduce unnecessary trouble, consumers must consume rationally when storing value. For example, before storing value, fully investigate the operation of the merchant; When storing value, ask the merchant about the lease period of the house to avoid situations such as long consumption and recharge cycles, and changes in places; After storing value, consume in time and always pay attention to the operation of merchants' stores.
Regulation Bazaar
Relevant provisions of the Civil Code
Article 580:Where one of the parties fails to perform a non-monetary debt or the performance of a non-monetary debt does not conform to the agreement, the other party may request performance, except in any of the following circumstances: (1) it is legally or factually impossible to perform; (2) the subject matter of the debt is not suitable for compulsory performance or the cost of performance is excessive; (3) The creditor fails to request performance within a reasonable period of time.
Where there are any of the exceptions provided for in the preceding paragraph, resulting in the inability to achieve the purpose of the contract, the people's court or arbitration institution may, at the request of the parties, terminate the contractual rights and obligations, but this does not affect the assumption of liability for breach of contract.
Relevant provisions of the Consumer Rights Protection Act
Article 53: Where business operators provide goods or services in the form of advance payment, they shall provide them in accordance with the agreement. where it is not provided in accordance with the agreement, the agreement shall be performed in accordance with the consumer's requirements or the advance payment shall be returned; and shall bear the interest on the advance payment and the reasonable expenses that the consumer must pay.
Article 55: Where proprietors commit fraud in providing goods or services, they shall increase compensation for the losses they have suffered in accordance with consumers' requests, and the amount of increased compensation is three times the price of the goods purchased by the consumers or the cost of the services they received; Where the amount of increased compensation is less than 500 RMB, it is 500 RMB. Where the law provides otherwise, follow those provisions.
Lao Hu commented
Prepaid consumption has played an active role in promoting consumption and enlivening the market. However, for a long time, there have been problems and frequent disputes in this field, especially in the service industries such as beauty and fitness, education and training, etc., where a large number of civil litigation cases have been generated due to prepaid consumption, which not only consumes judicial resources, but also affects social harmony and stability.
In this regard, first of all, legislation in relevant fields should be strengthened, and relevant parties should formulate and improve laws and regulations in the field of prepaid consumption as soon as possible, and make clear and specific requirements for all aspects and processes such as preconditions, risk control, capital supervision and liability for breach of contract, make up for shortcomings, eliminate hidden dangers, and bring prepaid consumption into the track of rule of law. Second, to implement the principle of "those who enforce the law, those who popularize the law", the relevant market supervision and management departments should actively, in-depth, and sustainably carry out rule of law publicity and creditworthiness education, so that both sides of prepaid consumption can firmly establish the concept of law-abiding operation and integrity-based, work together and move in the same direction, boost confidence, expand consumption, and jointly promote high-quality economic and social development. Hu Yong
Source: Rule of Law Daily