3 15 Market Supervision in Action ｜ A Typical Case of Consumer Rights Protection in Inner Mongolia in 2023
01 The purchase of therapeutic instrument through Wechat business is invalid and difficult to refund.
[Brief introduction of the case]
Uncle Lu, a consumer, suffers from heart disease. On April 10th, 2023, he bought a semiconductor laser therapeutic instrument produced by Jiutouniao Medical Device Development Co., Ltd. through Wechat business at a cost of 2,280 yuan, hoping to play an auxiliary role in treating the disease through the instrument. The consumer has used it for nearly a month and thinks it has no effect. On May 7th, the consumer asked for a refund, and Wechat business asked him to buy another product to use with it, and the effect was more obvious. The consumer thinks that the operator doesn’t want to return the goods, so it is convenient to complain to Baotou Consumers Association on May 8, 2023, hoping to get help.
【 Processing Process and Results 】
After accepting the complaint, the staff of Baotou Consumers Association checked the chat record between consumers and Wechat business. Wechat business promised that "if the effect is not satisfactory or not within 30 days, he can apply for a refund". The staff contacted Wechat business by phone to ask him to fulfill his promise and was told to contact the manufacturer directly to get a refund. After contact, the consumer will mail the product back to the manufacturer at the request of the other party, and then refund the fee after inspection. In the end, the consumer received a refund of 2280 yuan on May 18th.
[Case Analysis]
Article 16 of the Law of People’s Republic of China (PRC) on the Protection of Consumer Rights and Interests stipulates: "If there is an agreement between the operator and the consumer, they shall perform their obligations according to the agreement, but the agreement between the two parties shall not violate the provisions of laws and regulations." In this case, when the consumer requests a refund according to the operator’s prior commitment, the operator should refund the fee for the consumer according to the commitment. In this case, the consumer shops through Wechat business, and the other party is not a micro-store. This is a private transaction between the two parties, and it is difficult to effectively protect their rights and interests. It is suggested that consumers shop through formal channels to avoid damage to their rights and interests.
Developers use "overlord clause" to exempt from overdue breach of contract.
[Brief introduction of the case]
Xinyuecheng Community, developed and sold by Inner Mongolia Shengda Real Estate Group Co., Ltd., agreed to hand over the house in December 2021, but it was overdue until March 2023. When the consumer handles the handover procedures, the developer marks the "overlord clause" on the delivery contract, and the consumer refuses to hand over the house without signing it, involving more than 20 million yuan of consumer disputes, which has caused complaints from the owners.
【 Processing Process and Results 】
On March 27th, 2023, the Consumers Association of Ulanhot organized a mediation meeting between the two parties at the Social Governance Center of Ulanhot. The staff pointed out that it was illegal for the developer to use the "overlord clause" to exempt himself from his responsibilities and obligations, and it should be stopped immediately, and asked the developer to give a written reply to the Consumers Association of Ulanhot on the reasons for overdue delivery and the situation of stopping using the "overlord clause". After mediation, the two parties reached the following agreements: 1. The respondent stopped using the "overlord clause" and went through the handover formalities according to the contract; 2. Consumers’ right to claim compensation for overdue liquidated damages can bring a lawsuit to the court according to law. On March 31st, the respondent submitted a written explanation of the reasons for overdue delivery and a commitment decision to stop using the "overlord clause".
[Case Analysis]
Article 26 of the Law on the Protection of Consumers’ Rights and Interests in People’s Republic of China (PRC) stipulates: "Operators shall not make unfair and unreasonable provisions to consumers, such as excluding or restricting consumers’ rights, reducing or exempting operators’ responsibilities, and aggravating consumers’ responsibilities, by means of format clauses, notices, statements, shop notices, etc., and shall not use format clauses and technical means to force transactions. Format clauses, notices, statements, store notices, etc. contain the contents listed in the preceding paragraph, and their contents are invalid. " Article 497 of the Civil Code of People’s Republic of China (PRC) stipulates: "In any of the following circumstances, the standard clauses are invalid: (1) There are invalid circumstances stipulated in Section 3 of Chapter VI of Part I of this Law and Article 506 of this Law; (2) The party providing the standard terms unreasonably exempts or lightens its responsibility, aggravates the other party’s responsibility or restricts the other party’s main rights; (3) The party providing the standard terms excludes the main rights of the other party. "
Home improvement merchants failed to fulfill their obligations according to the contract and arbitrarily increased the price.
[Brief introduction of the case]
Ms. Yang, a consumer, complained to the Consumers Association of Wulanhaote, claiming that two contracts were signed at the Oprah Winfrey Home Counter on the second floor of Red Star Macalline on February 19, 2023, which stipulated that the basic disassembly and assembly of her residence was 27,000 yuan and the custom-made wardrobe and cupboard was 67,000 yuan, totaling 94,000 yuan. The construction period was originally scheduled to be two months, but during the construction, the disassembly part was not completed from February 22 to early June. After the customized part was re-scaled, the merchant asked the consumer to pay another 22,000 yuan for reasons such as changing the cabinet material and changing the glass door. The consumer thought that the merchant had any price increase behavior, and verified the price increase part with the person in charge, and the merchant could not provide a clear basis for the price increase part. At the same time, the consumer entrusted others to recheck the measured drawing area, and found that there was an error of 3 square meters. The consumer demanded to cancel the contract and refund the money on the grounds that the merchant was fraudulent. No agreement was reached through mediation organized by the mall management. Consumers complained to the Consumers Association of Wulanhaote City, and provided evidence such as recordings, drawings and project progress records.
【 Processing Process and Results 】
After mediation by the Consumers Association, the merchant first promised to give a refund within 15 days and then repented, indicating that there was no fault. After many investigations and verifications, the staff of the Consumers’ Association think that the operator’s fare increase part does not provide the basis for clearly marking the price; There is an error of 1.2 linear meters between the cabinet area and its measured area; There is also overdue behavior in the construction period. Consumers Association believes that the behavior of merchants has constituted a breach of contract and infringed on the legitimate rights and interests of consumers. After mediation again, the operator refused to refund and withdrew from the mediation site halfway. Consumers Association made a decision to terminate mediation, supported consumers to bring a lawsuit to the court, and handed over the illegal acts of the operator suspected of infringing consumers’ legitimate rights and interests to the market supervision office of the jurisdiction for investigation and punishment according to law, and exposed them through Tik Tok WeChat official account, Wulanhaote Consumers Association. The operator was forced by public opinion to refund 67,000 yuan for consumers.
[Case Analysis]
Article 16 of the Law of People’s Republic of China (PRC) on the Protection of Consumers’ Rights and Interests stipulates: "Operators shall perform their obligations in accordance with this Law and other relevant laws and regulations when providing commodities or services to consumers. If the operator and the consumer have an agreement, they shall perform their obligations in accordance with the agreement, but the agreement between the two parties shall not violate the provisions of laws and regulations. " Article 577 of the Civil Code of People’s Republic of China (PRC) stipulates that "if a party fails to perform its contractual obligations or fails to meet the contract obligations, it shall bear the liabilities for breach of contract such as continuing to perform, taking remedial measures or compensating for losses." Article 13 of the Price Law of People’s Republic of China (PRC) stipulates: "Operators selling, purchasing goods and providing services shall clearly mark the price in accordance with the provisions of the competent pricing department of the government, indicating the commodity name, place of origin, specifications, grade, pricing unit, price or service items, charging standards and other relevant information. Operators are not allowed to sell goods at a higher price than the marked price, and they are not allowed to charge any unspecified fees. "
You need to buy extra glasses to watch 3D movies.
[Brief introduction of the case]
On January 26th, 2023, consumers watched a 3D movie at Moqi jaxa Cinema of Hulunbeier Tianzhixing Film and Television Media Co., Ltd., and the cinema informed consumers that they must buy or bring their own 3D glasses at their own expense to watch the movie, and the cinema did not provide 3D glasses for free. Consumers think it is unreasonable, and cinemas are obliged to provide 3D glasses for free. Consumers and operators failed to negotiate, so they called to complain for help.
【 Processing Process and Results 】
After receiving the complaint, the staff of the Consumer Complaint Mediation Office of Moqi Market Supervision Administration immediately communicated with the person in charge of the cinema to understand the facts. In accordance with the relevant provisions of the Law of People’s Republic of China (PRC) on the Protection of Consumers’ Rights and Interests, the operator was interviewed to mediate consumer demands. Finally, the operator and the consumer reached a mediation agreement through consultation, and the consumer was refunded the 20 yuan for purchasing 3D glasses, and the accumulated refund for consumers who had bought glasses for the same reason amounted to 200 yuan. The cinema promised to provide free glasses for all consumers who watched 3D movies in the future.
[Case Analysis]
Article 26 of the Law on the Protection of Consumers’ Rights and Interests in People’s Republic of China (PRC) stipulates: "Operators shall not make unfair and unreasonable provisions to consumers, such as excluding or restricting consumers’ rights, reducing or exempting operators’ responsibilities, and aggravating consumers’ responsibilities, by means of format clauses, notices, statements, shop notices, etc., and shall not use format clauses and technical means to force transactions. Format clauses, notices, statements, store notices, etc. contain the contents listed in the preceding paragraph, and their contents are invalid. " 3D glasses are an indispensable basic condition for watching 3D movies, and the provision of 3D glasses is an integral part of the viewing service. Consumers buy movie viewing services according to the ticket price of 3D movies, and theater operators should provide consumers with all services that meet the requirements of watching movies, including providing consumers with movie viewing facilities such as 3D glasses. It is a typical "unfair format clause" for the cinema to split its own service obligations and pass them on to consumers, which increases the burden on consumers and violates the principle of fairness and good faith. At the same time, because the cinema forces consumers to buy 3D glasses or in disguised form, it violates the provisions of the Measures for Punishment of Infringement on Consumers’ Rights and Interests, law enforcement officers ordered the cinema to make corrections and give a warning.
05 the problem of refunding the deposit due to the inability to borrow money for the purchase of commercial housing
[Brief introduction of the case]
On March 15, 2023, Ms. Consumer Palace complained to Bayannaoer Consumers Association that on March 10, 2023, she signed the House Purchase and Sale Deposit Agreement with Bayannaoer Hyde Real Estate Agency Co., Ltd., booked a commercial house, and paid a deposit of 20,000 yuan and a supervision fee of 5,000 yuan on site. When signing the contract, the consumer said that he can only pay the down payment, and the remaining house payment needs to be applied for a bank loan. I wonder if his conditions meet the conditions of bank mortgage loan. The real estate agency said that the conditions of consumers fully meet the loan requirements, and even if they do not meet the requirements, the company will help solve them. Subsequently, the consumer submitted proof of income and running water to the bank, but failed to pass the bank mortgage loan review. When concluding a house sales contract, the real estate brokerage company requires consumers to buy a house in full. If a house purchase contract is not concluded, the deposit and supervision fund will not be refunded. Consumers think that the real estate company’s practice is unreasonable and demand mediation from the Consumers Association.
【 Processing Process and Results 】
After receiving the complaint, the staff of the Consumers Association conducted an investigation. The consumer stated that when he looked at the house, the sales staff of the brokerage company did not carefully introduce the conditions needed to handle the mortgage, and did not fully fulfill the obligation of informing, so the responsibility should not be borne by him. The staff of the Consumers Association contacted the person in charge of the real estate brokerage company to learn more about the incident, introduced relevant laws and regulations to them, and organized mediation between the two parties. In the end, the real estate brokerage company refunded the consumer deposit of 20,000 yuan and the supervision fee of 5,000 yuan.
[Case Analysis]
Article 20 of the Law of People’s Republic of China (PRC) on the Protection of Consumers’ Rights and Interests stipulates: "Operators shall provide consumers with true and comprehensive information about the quality, performance, use and expiration date of goods or services, and shall not make false or misleading propaganda. Operators should give a true and clear answer to the questions raised by consumers about the quality and usage of the goods or services they provide. " Article 4 of the Supreme People’s Court’s Interpretation on Several Issues Concerning the Application of Law in the Trial of Disputes over Commercial Housing Sales Contracts stipulates: "If the seller accepts a deposit from the buyer as a guarantee for concluding a commercial housing sales contract through subscription, order, reservation, etc., if the commercial housing sales contract cannot be concluded due to one of the parties, it shall be handled in accordance with the provisions of the law on deposit; If the commercial housing sales contract cannot be concluded due to reasons not attributable to both parties, the seller shall return the deposit to the buyer. " In this case, because the brokerage company did not fully and clearly inform the conditions for handling the house loan when selling the house, it should bear adverse consequences for the failure to conclude the subsequent house purchase contract. At the same time, because the consumer has paid the deposit, but can’t conclude a house purchase contract, according to the above provisions, the real estate brokerage company in this case should refund the deposit and supervision money paid by the consumer.
06 farmers’ rights and interests in purchasing unqualified drip irrigation belts are damaged
[Brief introduction of the case]
In June, 2022, nine farmers, including Mr. Zhang, a villager from Halatugacha, Urad Middle Banner, Bayannaoer City, complained to Bayannaoer Consumers Association that in April, 2021, they bought a batch of drip irrigation belts for farmland irrigation from Inner Mongolia Zhaotong Pipeline System Co., Ltd., with a value of 251,725 yuan. In the process of use, it is found that some drip irrigation belts have no drip holes, some drip holes are blocked, and some of them burst and leak, which can not be used normally. Farmers think that there is a quality problem with the drip irrigation belt, and they have repeatedly asked dealers and manufacturers to solve the problem, but the merchants have been looking for reasons to delay, so they came to the Consumers Association to complain.
【 Processing Process and Results 】
After receiving the complaint, Bayannaoer Consumers Association immediately sent its staff to the farmland involved in the complaint for on-the-spot inspection, and found that the used drip irrigation tape was scattered in the fields, which could not restore the specific scene at that time. After the staff visited the farmers for investigation, it was basically confirmed that the situation reflected by the complainant did exist, but the existing evidence could not prove that there was a problem with the quality of drip irrigation tape. Later, it was found that there were surplus drip irrigation tapes in the farmer’s warehouse, which were unused and packaged completely. In order to recover the losses of farmers as much as possible, Bayannaoer Consumers Association applied to the Consumers Association of the autonomous region for mediation in time, but the dealers and manufacturers insisted that there was no quality problem with the drip irrigation tape, and the complaint handling was deadlocked. In order to obtain sufficient evidence, the staff of Bayannaoer Consumers Association entrusted the Inner Mongolia Autonomous Region Product Quality Inspection Institute for inspection in August 2022, and the drip tape was found to be unqualified. Accordingly, Bayannaoer Consumers Association supports consumer litigation and resolves disputes through litigation. On June 29, 2023, it was tried by the People’s Court of Tuzuoqi, and the loss was recovered for consumers by 251,725 yuan.
[Case Analysis]
This case is a typical agricultural dispute case. According to Article 11 of the Law of People’s Republic of China (PRC) on the Protection of Consumer Rights and Interests: "Consumers who suffer personal or property damage due to purchasing or using goods or receiving services shall have the right to compensation according to law." Article 24 stipulates: "If the goods or services provided by the business operators do not meet the quality requirements, consumers may return them according to the provisions of the state and the agreement of the parties, or require the business operators to fulfill the obligations of replacement and repair. If there is no state regulation and agreement between the parties, consumers can return the goods within seven days from the date of receipt; After seven days, if the statutory conditions for termination of the contract are met, the consumer can return the goods in time. If the statutory conditions for termination of the contract are not met, the operator may be required to perform obligations such as replacement and repair. " Article 62 stipulates: "The purchase and use of means of production directly used for agricultural production by farmers shall be implemented with reference to this Law." According to Article 32 of the Product Quality Law of People’s Republic of China (PRC), "Producers shall not adulterate or fake products, or pass unqualified products off as qualified products" and Article 39, "Sellers shall not adulterate or fake products, or pass unqualified products off as qualified products", in this case, consumers have the right to compensation because the operators sell unqualified products. After the mediation was unsuccessful, because the facts of infringement on consumers’ rights and interests were clear and involved many farmers’ groups, according to the functions and responsibilities entrusted by law, consumers’ associations supported the prosecution, further safeguarding the consumption environment and market order.
07 There is something wrong with the size of customized furniture.
[Brief introduction of the case]
On June 2, 2023, Ms. Zhai complained to Wuhai Consumers Association that on April 2, she customized European brand furniture in Lengyuxin wardrobe dealership in Haibowan District, Wuhai City. On May 14, when she arrived for installation, she found that 21 door panels were small in size. When the dealer installed them at home, she also found that there was something wrong with the size and communicated with the manufacturer. The manufacturer said that the product was fine and belonged to the adjustable range, but the gap was obvious after adjustment.
【 Processing Process and Results 】
After receiving the complaint, the staff of Wuhai Consumers’ Association conducted investigation and mediation, and obtained the order measurement drawings. The dealer also admitted that there was something wrong with the size of this batch of door panels. Because the door panels were customized by the manufacturer, they are now unable to replace the door panels for consumers, and are actively communicating with the manufacturer to replace the door panels for consumers. The staff of the Consumers Association called the manufacturer and pointed out that if the operator provides goods or services to consumers, and one party fails to perform the contractual obligations or the performance of the contractual obligations is not in conformity with the agreement, it shall bear the liability for breach of contract such as continuing to perform, taking remedial measures or compensating for losses. Finally, after communication, the manufacturer agreed to send someone to handle the appeal, and if the problem is true, it will be replaced.
[Case Analysis]
Article 16 of the Law of People’s Republic of China (PRC) on the Protection of Consumers’ Rights and Interests stipulates: "Operators shall perform their obligations in accordance with this Law and other relevant laws and regulations when providing commodities or services to consumers. If there is an agreement between the operator and the consumer, they shall perform their obligations in accordance with the agreement, but the agreement between the two parties shall not violate the provisions of laws and regulations. When providing commodities or services to consumers, business operators shall abide by social morality, operate in good faith and protect the legitimate rights and interests of consumers; Unfair and unreasonable trading conditions shall not be set, and transactions shall not be forced. " Article 577 of the Civil Code of People’s Republic of China (PRC) stipulates: "If a party fails to perform its contractual obligations or fails to meet the contract obligations, it shall bear the liabilities for breach of contract such as continuing to perform, taking remedial measures or compensating for losses." Therefore, consumers have the right to ask operators or producers to perform the agreed services.
08 Laundry clothes lost
[Brief introduction of the case]
On November 7, 2023, Ms. Tian complained to Wuhai Consumers Association that on April 6, 2023, three down jackets were sent to Yixiang Laundry in Haibowan District, Wuhai City, and the laundry did not provide her with a service ticket after collecting the clothes. When picking up the clothes, she found that one of the children’s down jackets worth 399 yuan was not cleaned, and the laundry said that it was responsible for heavy washing, so she took away the other two down jackets. At the end of October, when she went to the laundry to pick up the washed children’s down jacket, the laundry said that the dress had been taken away in June according to the store computer, so there was a dispute between the two sides.
【 Processing Process and Results 】
After receiving the complaint, the staff asked the laundry about the consumer’s complaint. The laundry said that although the service receipt was not issued to the consumer at that time, it was recorded in the store computer. In June, the children’s down jacket was taken away by a man. The consumer thinks that the laundry should check with her the identity of the clothes picker without the clothes pick-up certificate. Now that the clothes have been taken away by others, the laundry should pay compensation. Because the laundry did not issue a service document to the consumer when providing laundry service, there was no objection to the laundry service process. The computer data was recorded unilaterally by the laundry, and the laundry did not verify it when others took the clothes, and there was no other evidence to prove that the consumer entrusted others to take the clothes, the laundry should be liable for compensation. Finally, after mediation, both parties reached an agreement, and the operator compensated 300 yuan to the consumer.
[Case Analysis]
In this case, according to Article 25 of the Measures of Inner Mongolia Autonomous Region for Implementing the Law of People’s Republic of China (PRC) on the Protection of Consumers’ Rights and Interests: "Operators engaged in the dyeing and ironing industry shall provide services as agreed. If the clothes are damaged, dyed or lost, the operator shall refund the fees collected and bear the corresponding liability for compensation according to the actual purchase price of the goods, depreciation of the goods and other factors. " Article 15 of the Measures for the Administration of Washing and Dyeing Industry "Operators shall issue service receipts to consumers when providing services. Service documents should include: the name, quantity, color, damaged or missing parts, service content, price, delivery date, storage period, matters agreed by both parties, dispute resolution, etc. "and Article 17" Operators should standardize the handover procedures of clothes in each process to prevent loss or damage; The storage and payment of dirty and clean clothes should be separated. "The operator should issue a bill to the consumer without issuing it, and the clothes handover did not fulfill the responsibility of informing when picking up the clothes, and should be liable for compensation.
09 medical disputes caused by tooth extraction in dental clinic
[Brief introduction of the case]
On March 17th, 2023, Ms. Ma, a consumer, complained to the Consumers Association of Alashan League that when the wisdom teeth were pulled out at Qingbai Dental Clinic in Bayanhaote Town, Alashan Zuoqi, the drill bit fell into the mouth due to improper operation by medical staff, which caused extensive damage to the oral mucosa and caused inconvenience to daily life, and the consumer demanded compensation from the operator.
【 Processing Process and Results 】
The staff contacted the clinic for investigation at the first time, confirmed that the situation described by Ms. Ma was true, and immediately organized mediation between the two parties. After careful and patient mediation, the dental clinic compensated Ms. Ma for 15,000 yuan, which was paid in three months.
[Case Analysis]
Article 7 of the Law on the Protection of Consumers’ Rights and Interests in People’s Republic of China (PRC) stipulates: "Consumers have the right to protect their personal and property safety when purchasing and using commodities and receiving services. Consumers have the right to require the goods and services provided by operators to meet the requirements of protecting personal and property safety. " Article 49 stipulates: "If a business operator provides goods or services and causes personal injury to consumers or other victims, it shall compensate medical expenses, nursing expenses, transportation expenses and other reasonable expenses for treatment and rehabilitation, as well as the income reduced due to absenteeism." In this case, due to the negligence of the staff of the dental clinic, the consumer suffered personal injury in the process of receiving services, and the consumer has the right to ask the merchant to bear the liability for compensation.