In order to thoroughly implement the spirit of the Sixth Plenary Session of the Nineteenth CPC Central Committee and the Central Economic Work Conference, adhere to the people-centered development idea, promote common prosperity in high-quality development, promote social fairness and justice, and safeguard the legitimate rights and interests of consumers, the China Consumers Association has determined "2020-2021" on the basis of cases submitted by local consumer associations and recommendations by relevant experts.Ten typical cases of annual consumer association organization maintaining consumer fairness. "
In 2020-2021, the top ten typical cases of consumer justice organized by Consumers Association covered the current hot issues of consumer rights protection, including the inability to shut down the startup advertisement of smart TV, the compulsory tying of gas insurance by gas companies, the difficulty of refunding the loan due to the low-cost drainage of photo studios, the difficulty of stopping the business of training institutions without authorization, the charging of tolls for car maintenance parts, the tattoo of minors without the consent of guardians, the delay of refund due to force majeure by foreign airlines, and the difficulty of making an appointment for pre-sale foot bath bags.
These cases reflect the unfair phenomena in the field of consumption from different angles, such as compulsory transactions, unfair and unreasonable charges, overlord clauses and unfair treatment. Operators should take this as a warning, be honest and trustworthy, abide by public morality, be good at science and technology, operate according to law, care for the weak, treat each other equally, do not abuse their dominant position, and do not use technical means to infringe, and truly implement the principle of fairness in all aspects of production, publicity, contract, sales and after-sales, so that consumers can feel substantive fairness.
Consumption fairness is an important embodiment of social fairness and an important content of achieving common prosperity. When purchasing goods or receiving services, consumers have the right to obtain fair trading conditions such as quality assurance, reasonable price and correct measurement, and have the right to refuse the compulsory trading behavior of operators. China Consumers Association calls on all relevant sectors of society to take active actions to urge operators to strictly implement legal provisions, earnestly assume social responsibilities, pay more attention to the protection of consumers’ rights and interests, jointly promote consumer fairness, and constantly enhance consumers’ sense of acquisition, happiness and security.
Case 1: Public interest litigation case in which smart TV startup advertisements cannot be closed.
[Brief introduction of the case]
Since the second half of 2019, Jiangsu Consumer Rights Protection Committee will carry out a series of investigations, interviews and litigation actions to protect the rights of smart TVs. On December 12, 2019, Lerong Zhixin Co., Ltd., a subsidiary of LeTV, which refused to rectify, filed a consumer civil public interest lawsuit in accordance with the law, requesting the court to order the defendant to provide the smart TVs with boot advertisements that it sold with the function of turning off the boot advertisements with one button. After the first trial of Nanjing Intermediate People’s Court and the second trial of Jiangsu Higher People’s Court, in March 2021, Jiangsu Consumer Protection Committee won the case. During this period, Jiangsu Consumer Protection Committee and china electronic chamber of commerce jointly issued the group standard "Technical Specification for Smart TV Start-up Advertising", which is conducive to better leading the healthy development of smart TV industry.
[Expert Comments]
The widespread problem that the startup advertisement can’t be closed in the smart TV industry has been criticized by the society. Consumers’ Association launched a series of actions against this hot consumption issue, urged many operators with similar behaviors to rectify, and filed public interest litigation against enterprises involved who refused to rectify, which played a good educational warning role, effectively safeguarded consumer fairness, protected the legitimate rights and interests of many unspecified consumers, and promoted the development of related industry norms.
[Guidelines for Rights Protection]
Smart TV power-on advertisements are forcibly implanted and cannot be closed, which seriously affects consumers’ viewing experience, and also violates "operators shall not send commercial information to consumers without their consent or request, or consumers expressly refuse" and "using the Internet to send and publish advertisements shall not affect users’ normal use of the network. Advertisements published in the form of pop-ups on Internet pages should be marked with a closing sign to ensure one-click closure. Operators of smart products should establish the value concept of science and technology for good, operate in good faith and abide by the law, ensure consumers enjoy equal consumption rights, and put an end to the use of technical means to implement compulsory transactions.
【 Related Law 】
Articles 9, 10, 29, paragraph 3 and 47 of People’s Republic of China (PRC) Consumer Protection Law, article 44, paragraph 2 of People’s Republic of China (PRC) Advertising Law, article 58, paragraph 1 of People’s Republic of China (PRC) Civil Procedure Law, and articles 1, 2 and 13 of the Supreme People’s Court’s Interpretation on Several Issues Concerning the Application of Laws in the Trial of Consumer Civil Public Interest Litigation Cases.
Case 2: Compulsory tying gas insurance case of gas company
[Brief introduction of the case]
On March 31, 2021, Mr. Xia, a consumer in Yunmeng County, Xiaogan City, Hubei Province, complained that when he applied for natural gas installation, the staff of the gas company forced consumers to buy gas insurance 300 yuan first, otherwise they would not install gas equipment. After Mr. Xia was forced to pay the fee, the gas company did not issue an invoice or receipt. After receiving the complaint, Yunmeng Consumer Council interviewed the gas company and pointed out that it is its due obligation to install natural gas equipment. Whether to buy gas insurance should be chosen by consumers, and the gas company has no right to force it. After mediation, the gas company refunded the consumers’ gas insurance fees, and rectified the problem of compulsory bundling.
[Expert Comments]
Compulsory tying in the field of public services not only harms the rights and interests of many consumers, but also is suspected of violating the Anti-Monopoly Law. Gas companies engaged in business activities shall not abuse their dominant market position, force tying or attach unreasonable trading conditions to transactions. Consumers’ associations perform their duties according to law, urge operators to correct illegal acts, effectively correct unfair consumption and safeguard the interests of many consumers.
[Guidelines for Rights Protection]
Consumers have the right to fair trade according to law and have the right to refuse the compulsory trading behavior of operators. Operators shall protect the legitimate rights and interests of consumers, and shall not set unfair and unreasonable trading conditions or force transactions. When consumers ask for purchase vouchers or service documents such as invoices, operators must issue them. Because of its public welfare nature, the state has invested public resources in the field of public services, and operators should pay more attention to the fairness of consumption, and must not arbitrarily bundle and charge fees on the basis of state statutory fees in violation of the law, thus harming the legitimate rights and interests of consumers.
【 Related Law 】
Article 17 of the Anti-Monopoly Law and Articles 4, 9, 16 and 22 of the Consumer Protection Law.
Case 3: Low-cost drainage of photo studio induces the handling of consumer loans.
[Brief introduction of the case]
In December, 2019, two college students signed up for the advertisement of Yan Yu Photography Company to experience costume photography for 19.9 yuan on a short video. After arriving at the store, I couldn’t stand the salesman’s promotion. I signed a photography order agreement of 1,100 yuan and a "supplementary agreement" of 1,588 yuan and 24,000 yuan to upgrade clothes, films and photo albums. The clerk also guided the two people to open the online loan service to borrow money for consumption. In the end, the two paid most of the expenses, leaving 5,900 yuan unpaid. During the filming and the night of departure, the two repeatedly proposed to delete photos and lower the package standard, which was rejected by the store for various reasons. In the absence of mediation, the Shanghai Consumer Protection Committee will guide the Hongkou District Consumer Protection Committee to support consumer prosecution. In February, 2021, Shanghai Hongkou Court decided to cancel the 1100 yuan order agreement and 24,000 yuan supplementary agreement signed by both parties, and the photo studio returned 18,600 yuan to consumers. The studio also promised to modify the terms of the contract format, so that customers can unconditionally cancel the contract within 24 hours after signing the contract.
[Expert Comments]
In the name of low-cost experience, merchants attract consumers to place orders by means of short videos and other promotional channels. In fact, in the process of providing services, they heavily induce consumers to increase prices and upgrade, make consumption decisions that go against their true intentions, and even induce college students to handle consumer loans beyond their ability to repay loans, which seriously damages the legitimate rights and interests of consumers. Consumers’ Association supported consumers to win the lawsuit by requesting the support of the district procuratorate and contacting the district judicial bureau to appoint public interest lawyers, which effectively safeguarded consumers’ legitimate rights and interests and promoted social fairness and justice.
[Guidelines for Rights Protection]
Operators should strictly abide by the laws and regulations, abide by business ethics, be honest and trustworthy, operate legally, and put an end to low-cost arbitrage, price increases at different levels, and restrict and mislead consumers. Microfinance companies should earnestly implement the Notice on Further Standardizing the Supervision and Management of College Students’ Internet Consumer Loans, strengthen marketing management, strictly review the pre-loan qualifications, strictly implement the second repayment source of college students, strictly control the credit qualifications of college students, and must not use deceptive, misleading or induced publicity to induce college students to apply for consumer loans. The vast number of consumers should keep a clear head about low-price sales, rationally consume according to their own consumption power, and avoid the trap of excessive consumption and high loans.
【 Related Law 】
Articles 563, 565, 566 and 770 of the Civil Code of People’s Republic of China (PRC), and Articles 4, 8, 9 and 10 of the Consumer Protection Law.
Case 4: It is difficult for a training institution to suspend business without authorization for refund.
[Brief introduction of the case]
Since May 2021, Chongqing Consumer Rights Protection Committee and Qianjiang Consumer Rights Protection Committee have successively accepted 151 consumers’ complaints that Chongqing Yunhan Art Training Co., Ltd. suddenly closed down after collecting consumer training fees and did not return the remaining training fees. On August 19th, Chongqing Consumer Protection Committee and Qianjiang District Consumer Protection Committee supported consumers to file a class action lawsuit with Qianjiang District People’s Court, and coordinated lawyers to provide litigation agency services for consumers. On November 17, the Qianjiang District People’s Court of Chongqing held a public hearing to hear the case. In the final judgment, the defendant will refund the consumer training fee within ten days from the effective date of the judgment.
[Expert Comments]
It is a prominent infringement problem in recent years that off-campus training institutions collect training fees, refuse to perform their duties and do not refund the remaining training fees. This kind of case involves a large number of consumers and has great social security risks. The two-level consumer associations actively responded and took the initiative to help consumers file class actions and achieved good results, which played an important leading role in maintaining social stability and promoting consumer fairness.
[Guidelines for Rights Protection]
Off-campus training institutions shall strictly implement the Notice on Strengthening the Supervision of Off-campus Training Institutions’ Pre-charging, and shall not charge fees for more than 3 months or 60 class hours in a lump sum or in the form of recharge or sub-card. For the training institutions, the pre-paid fees are fully included in the scope of supervision, and risk management and control are carried out through bank custody and risk margin. Strict training loan management, it is forbidden to induce installment loans to pay off-campus training fees. Consumers should pay attention to identifying the qualifications of training institutions, carefully consulting the contents of contracts, beware of consumption risks, pay attention to retaining evidence, and safeguard their rights and interests according to law.
【 Related Law 】
Articles 471 and 577 of the Civil Code of People’s Republic of China (PRC), and article 53 of the Law of People’s Republic of China (PRC) on the Protection of Consumer Rights and Interests.
Case 5: The case of automobile maintenance spare parts with fake parts as real ones.
[Brief introduction of the case]
In March 2021, Ms. Gui, a consumer, chose an offline repair shop for routine maintenance through an online car maintenance platform, which cost a total of 6,000 yuan. However, the front and rear four brake discs and front wheel brake pads replaced by the auto repair factory were not the original parts promised, and the 20,000-kilometer front brake disc will still be used for replacement, which is suspected of over-maintenance. After mediation by Nanjing Consumers Association, the auto repair factory apologized to the consumers and made a refund of one compensation and three compensation.
[Expert Comments]
The chaos in the field of automobile maintenance is frequent, and the key lies in the dishonesty and disobedience of some operators. Due to opaque information, consumers lack professional knowledge and consumption experience, and it is difficult to see through all kinds of routines in the automobile maintenance industry. Through the professional support of the automobile professional committee, the Consumers Association helps consumers to obtain punitive damages, effectively safeguarding the legitimate rights and interests of the disadvantaged consumers.
[Guidelines for Rights Protection]
Automobile maintenance operators should earnestly improve their awareness of the rule of law, ensure the quality and quantity, keep their promises, buy and sell fairly, and provide sincere service, so as to prevent the fake from being genuine, excessive maintenance and cheating consumers. The vast number of consumers should pay attention to check the qualification of the garage before maintenance and understand the basic knowledge of automobile maintenance; When maintaining, a written contract should be signed to specify the repair items, prices, accessories and warranty period. After maintenance, it is necessary to check in time, and ask for invoices, expense lists, accessories vouchers, etc. Once it is found that the auto repairer has excessive maintenance and fraud, it is necessary to complain and report in time and protect rights according to law.
【 Related Law 】
Articles 7, 8, 10, 20 and 55 of the Law of People’s Republic of China (PRC) on the Protection of Consumer Rights and Interests.
Case 6: The case of toll collection for limited-time traffic when highway cards are set up.
[Brief introduction of the case]
In September, 2021, according to the clues reflected by consumers, the Consumers Association of Inner Mongolia Autonomous Region found that a cultural tourism company set up checkpoints on two highway routes, the national highway and the provincial highway, and charged the 120 yuan fee for each passing vehicle in the form of a stop deposit. If it did not pass through the road within a limited time (12 kilometers for 25 minutes and 38 kilometers for 60 minutes), the deposit would not be refunded. In response to the company’s illegal behavior, the Inner Mongolia Consumers Association, together with lawyers from the lawyers’ group and TV reporters, conducted investigation and evidence collection, held discussions with local transportation, cultural tourism and other departments, and urged the company to immediately rectify the illegal behavior and dismantle the two highways as soon as possible. In October, 2021, the company dismantled the road cards on the national and provincial roads.
[Expert Comments]
In some places, illegal card setting fees often appear, which not only increases the burden on consumers, infringes on the legitimate rights and interests of many unspecified consumers, but also restricts the choice of reasonable consumption such as eating and living along the way. The practice of time-limited traffic will also adversely affect the traffic order and driving safety of passing vehicles and, to a certain extent, destroy the impression of foreigners on the local area. Consumers’ Association urged the operators involved in litigation to rectify according to law, avoided economic losses for many consumers, cleared the "roadblock" of arbitrary charges, and achieved good social effects.
[Guidelines for Rights Protection]
Highways are protected by the state, and no unit or individual may illegally occupy them, or illegally set up checkpoints, collect fees, impose fines or intercept vehicles on highways. Operators can’t make use of infrastructure such as highways, illegally set up checkpoints to collect fees, or illegally charge extra fees and set their own punishment measures, which will undermine road traffic safety and traffic order. When consumers find such illegal acts, they should promptly complain and report them in order to effectively stop and correct them.
【 Related Law 】
Article 9 of People’s Republic of China (PRC) Highway Law, Articles 9, 10 and 16 of People’s Republic of China (PRC) Consumer Protection Law.
Case 7 Tattooing a minor without guardian’s consent
[Brief introduction of the case]
In July 2021, Ms. Lin, a consumer, accidentally discovered that her 13-year-old daughter had tattoos on her thighs and chest. There are patterns, Chinese characters and letters in these tattoos, which are all kinds, which are incompatible with their childish faces. Under questioning, I know that the child spent 700 yuan getting a tattoo in a tattoo shop. Ms. Lin refused to ask the merchant to refund the tattoo fee, so she complained to Zhenhai Branch of the Consumer Council of Licheng District, Putian City, Fujian Province. The staff of Zhenhai Branch pointed out that the operators tattooed the consumers without the consent of their legal guardians, which infringed on the physical and mental health of minors. After mediation, the merchant refunded Ms. Lin’s 700 yuan tattoo fee.
[Expert Comments]
Tattooing may hinder minors’ further education, enlistment and employment, and adversely affect minors’ rights such as health, development, protection and social participation. The 13-year-old minors are immature and belong to people with limited capacity for civil conduct. Their age, intelligence and social experience are still unable to judge the possible damage and influence of tattoos on themselves. The behavior of purchasing tattoo services is beyond their age and intelligence. It is of great significance for consumers’ associations to organize mediation according to law to standardize business operations, protect the legitimate rights and interests of minors and care for their physical and mental health.
[Guidelines for Rights Protection]
Protecting the legitimate rights and interests of minors is the common responsibility of the whole society. Business operators should fulfill their duty of care when providing commodities or services to minors. Parents, as legal guardians, should guide minors to establish a correct concept of consumption. Minors engage in consumption that is incompatible with their age and intelligence privately. Without the consent and ratification of guardians, their consumption behavior is invalid, and guardians have the right to ask operators to refund the paid price or make corresponding compensation.
【 Related Law 】
Articles 19, 22, 23, 128 and 145 of the Civil Code of People’s Republic of China (PRC), and Articles 7, 11 and 18 of the Consumer Protection Law of People’s Republic of China (PRC).
Case 8 Foreign Airlines Delayed Refund Due to Force Majeure
[Brief introduction of the case]
On March 7, 2020, consumer Ms. Wang spent 2093 yuan on a domestic booking website to buy a foreign airline ticket. Due to the cancellation of the epidemic flight, Ms. Wang only received a refund of 167 yuan according to the airline refund regulations. Ms. Wang complained to the Consumers Association of Chaoyang District, Beijing after many unsuccessful communication with booking websites and airlines. After investigation, the airline introduced a refund policy on March 19, saying that those who cannot make a trip after March 19 can only change their tickets and cannot refund their tickets. Chaoyang District Consumers Association pointed out that it is not the responsibility of consumers to cancel flights due to force majeure, and consumers should not bear the risks alone. On April 15th, the airline announced that tickets booked before May 31st can be changed or exchanged for travel vouchers. If they are not changed or exchanged for travel vouchers, they can be refunded two years later. Chaoyang District Consumers Association believes that this policy still does not comply with the relevant laws of China and should continue to be rectified. In the end, the booking company and the airline, with the consent of consumers, negotiated and decided to fully refund the purchase money of consumers within two months. The airline also canceled the period of refund after two years in the refund clause and revised it to "If you can’t travel, you can still apply for a refund without handling fees".
[Expert Comments]
It is a typical unfair format clause that airlines cancel flights because of the epidemic but ask consumers to bear all the losses. When conducting business in China, foreign business operators should abide by Chinese laws and regulations, treat consumers fairly and effectively protect their legitimate rights and interests. Consumers’ Association is not afraid of difficulties, communicating with airlines and booking websites in time, effectively resolving consumer disputes, not only safeguarding consumers’ legitimate rights and interests, but also prompting foreign operators to cancel unfair format clauses, which has a good demonstration significance.
[Guidelines for Rights Protection]
If the purpose of the contract cannot be achieved due to force majeure, the consumer may terminate the contract. According to the influence of force majeure, the liability may be exempted in part or in whole. Where a business operator advocates continuing to perform or modifying or supplementing the contents of goods or services on the basis of the original agreement, it shall obtain the consent and consensus of consumers. Operators shall not make unfair and unreasonable provisions such as excluding or restricting consumers’ rights, reducing or exempting operators’ responsibilities, and aggravating consumers’ responsibilities through standard clauses. Otherwise, its content is invalid.
【 Related Law 】
Articles 563 and 590 of the Civil Code of People’s Republic of China (PRC) and Article 26 of the Law of People’s Republic of China (PRC) on the Protection of Consumer Rights and Interests.
Case 9 Pre-sale Foot Bath Bag Annual Card is difficult to make an appointment without refund.
[Brief introduction of the case]
From March to August, 2021, Cicheng Consumer Protection Branch of Jiangbei District Consumer Protection Committee of Ningbo received 15 complaints from consumers asking for a refund from a foot bath company. Consumers claim that the company sells a 1300-yuan annual subscription card on the Internet platform, claiming that with this card, you can enjoy free foot baths in various foot bath shops in Ningbo for 365 days. When consumers actually use it, the store always refuses to make an appointment on the grounds that the quota of the day has been used up. The consumer asked for a refund, but the company refused on the grounds that the card would not be refunded once it was sold, and the final interpretation right belonged to the merchant. After receiving the complaint, Cicheng Consumer Protection Branch interviewed the person in charge of the company, pointing out its problems such as excessive card issuance, insufficient reception capacity and unfair format terms. After mediation, the company refunded 15 consumers.
[Expert Comments]
Prepaid consumption often faces difficulties in guaranteeing the quality of service, easily getting a refund when buying, too many restrictions in the "overlord clause", and operators closing stores and "running away" without authorization, which leads to the damage of consumers’ rights and interests. In this case, the Consumers Association organized timely interviews and mediation according to law, which effectively corrected the illegal acts of operators and safeguarded the legitimate rights and interests of many consumers.
[Guidelines for Rights Protection]
Operators to carry out prepaid business should reasonably evaluate the number of card issuance and service ability to ensure the purchasing experience of consumers; When formulating format clauses, notices, statements and shop notices, the rights and obligations of both parties shall be agreed fairly and reasonably, and unfair and unreasonable provisions shall not be made to harm the legitimate rights and interests of consumers. When consumers make prepaid consumption, they should do what they can, keep calm and rational, and avoid one-time high recharge; Before payment, it is necessary to sign a written agreement with the operator to clarify the rights and obligations, focusing on the details of the prepaid card, such as the amount, function, scope of application, validity period, refund conditions, liability for breach of contract, etc., especially the termination of service and transfer restrictions. The verbal commitment to the merchant should be written into the agreement, and the bill should be requested in time after each consumption. Found illegal behavior, abnormal operation, timely complaints and reports.
【 Related Law 】
Articles 26 and 53 of the Law of People’s Republic of China (PRC) on the Protection of Consumer Rights and Interests.
Case 10 The jewelry store oversold the elderly consumers.
[Brief introduction of the case]
In August 2021, 60-year-old Ms. Chen was surrounded by several clerks in a jewelry store to promote jewelry while shopping in the mall. After brainwashing, consumers promised to buy jewelry with a total price of 680,000 yuan. Because she didn’t know how to operate the mobile phone, the clerk used Ms. Chen’s mobile phone to transfer 100,000 yuan to her personal account twice. The consumer asked for the bill, and the clerk said that if the consumption was less than 200,000, a receipt could not be issued. Worried that she couldn’t get the paid fees back, Ms. Chen went home to get the bank card, and under the guidance of the clerk, she paid another 100,000 yuan by credit card, and paid a total of 200,000 yuan as a jewelry deposit. There was no contract and signature confirmation in the whole transaction process. After returning home, Ms. Chen felt deeply wrong, and her request for a refund from the jewelry store was rejected, so she complained to Shilong Branch of Dongguan Consumer Council, Guangdong Province. The staff of Shilong Branch interviewed the relevant person in charge of the jewelry store and pointed out that its sales promotion behavior was suspected of deceiving and misleading the elderly who were over 60 years old, and was suspected of infringing consumers’ right to know and fair trade. After mediation, the jewelry store returned the deposit of 185,000 yuan to Ms. Chen, and the remaining deposit of 15,000 yuan was offset by the equivalent items in the store, and the unpaid deposit of 480,000 yuan was no longer pursued.
[Expert Comments]
In this case, the jewelry store clerk used the weakness of the elderly’s lack of social cognition to induce them to buy huge amounts of jewelry and charge a high deposit, and coerced the elderly to go home to withdraw money on the grounds that they could not issue a receipt for less than 200,000 yuan, which seriously infringed on the legitimate rights and interests of the elderly consumers, damaged the consumers’ right to know and fair trade, violated social morality and violated fairness and justice. Consumers’ Association organizes timely interviews with operators, properly handles consumer disputes, and effectively protects the legitimate rights and interests of elderly consumers in a weak position.
[Guidelines for Rights Protection]
Protecting the legitimate rights and interests of the elderly is the common responsibility of the whole society. Operators should abide by social morality and consciously provide special care for the elderly. It is not only against the law to make false propaganda and deceive the elderly, but also to be spurned by the society. Older consumers should pay attention to learning consumer knowledge, improve their awareness of self-prevention, not trust the verbal promises of operators, and be wary of brainwashing sales. Before buying products and receiving services, it is best to consult your children or professionals and relevant departments, and do not covet small profits or impulse consumption. If you find that your rights and interests are damaged, pay attention to retaining evidence and complain about your rights in time.
【 Related Law 】
Article 128 of the Civil Code, Articles 7 and 8 of the Law of the People’s Republic of China on the Protection of the Rights and Interests of the Elderly, Articles 4, 8, 10, 20 and 22 of the Law of People’s Republic of China (PRC) on the Protection of Consumer Rights and Interests.
