Lawyers Look at Consumer Rights Protection from Mercedes-Benz Incident
Published:
2019-04-18
Brief of the case
On February 25, 2019, the female car owner made a down payment of more than 200,000 yuan at Xi'an Lizhixing Mercedes-Benz 4S store and bought a Mercedes-Benz car. On March 27, after the female owner picked up the car, she found the engine leaking before leaving the 4S store. Since then, she has communicated with the 4S store many times to solve the problem, but was told that she could not refund or change the car, and could only replace the engine in accordance with the "Three Guarantees Policy. After 15 days of repeated negotiations to return the vehicle, the woman was forced to defend her rights in the store.
legal analysis
1. Female car owners may, in accordance with Article 20 of the provisions on the liability for repair, replacement and return of household automobile products, "if the conditions for replacement and return of household automobile products meet these provisions within the validity period of the three guarantees, the consumer shall replace and return the goods by the seller with the three guarantees certificate and the purchase invoice. Within 60 days from the date when the seller issues the purchase invoice or the mileage is 3000 kilometers (whichever comes first), if the steering system failure, brake system failure, body cracking or fuel leakage occurs in the family car product, and the consumer chooses to replace the family car product or return the product, the seller shall be responsible for free replacement or return the product", requiring the merchant to change the car or refund. Female car owners can also directly quote the the People's Republic of China Contract Law. The Mercedes-Benz car delivered by the 4S shop leaked oil before it was driven away, indicating that the vehicle delivered by the 4S shop did not conform to the contract. Therefore, the 4S shop first constituted a fundamental breach of the contract. Therefore, female car owners can request to terminate the contract in accordance with Article 94 of the the People's Republic of China Contract Law, or they can request to change the car in accordance with Article 111 of the the People's Republic of China Contract Law, instead of only requiring repair or replacement of the engine in accordance with the Three Guarantees Law.
2. When the staff of the Mercedes-Benz 4S store sold the car to the female owner, did they know that the engine had quality defects and concealed the relevant facts? If the 4S store deliberately used shoddy products to defraud consumers, the female owner as a consumer can follow Article 55 of the Consumer Rights Protection Law stipulates: "If an operator commits fraud in providing goods or services, he shall increase compensation for the losses suffered by the consumer in accordance with the requirements, the amount of increased compensation shall be three times the price of goods purchased or services received by consumers; if the amount of increased compensation is less than 500 yuan, it shall be 500 yuan. If there are other provisions in the law, in accordance with its provisions", that is, what is called "refund one compensation for three" in daily life ".
What is "one to three"?
"Return one" means that the merchant misleads and deceives consumers to make purchases through false propaganda, and the consumer can ask the merchant for an unconditional refund; "Compensation three" means that the merchant misleads and deceives consumers to make purchases through false propaganda, and the merchant should compensate the consumer 3 times the loss.
How to determine "return one compensation three"?
There are three constituent elements of "refund one compensation for three": 1. The subject must be the consumers pointed to by the "the People's Republic of China Consumer Rights Protection Law.
2, the operator's behavior must belong to the Supreme People's Court on the implementation.<中华人民共和国民法通则)若干问题的意见》第68条所界定的“欺诈。该意见第68条规定：“一方当事人故意告知对方虚假情况，或者故意隐瞒真实情况，诱使对方当事人作出错误意思表示的，可以认定为欺诈行为”。< span="">
3. Consumers must fall into a wrong understanding because of the fraudulent behavior of the operator, and sign a car purchase agreement with the operator and implement the car purchase behavior because of the wrong understanding.
As long as the merchant commits sales fraud to the consumer, the customer can request the application of Article 55 of the Consumer Rights Protection Law, requiring the merchant to "refund one and compensate three". In addition, Article 148 of the General Principles of the Civil Law also stipulates that if one party fraudulently causes the other party to commit a civil legal act against its true will, the defrauded party has the right to request the people's court or arbitration institution to revoke it.
How Consumers Protect Their Rights
1. Whether consumers have the "right to regret" after shopping ".
The newly promulgated "Consumer Rights Protection Law" stipulates that consumers have a seven-day "right to regret", but consumers need to pay for "repentance" and bear the return freight; consumer associations can file public interest lawsuits to make them consumers A green channel for rights protection.
2. What are the channels for consumer rights protection?
Article 34 of the Consumer Rights Protection Law clearly stipulates that consumer rights disputes between consumers and business operators can be resolved in five ways:(1) negotiate and settle with the business operator;(2) request the consumer association for mediation;(3) Appeal to the relevant administrative department;(4) submit to the arbitration institution for arbitration according to the arbitration agreement reached with the business operator;(5) file a lawsuit in the people's court. At the same time, but also pay attention to and grasp the statute of limitations. Accordingly, when the rights and interests of consumers are infringed, they must file a lawsuit to the court in time.
3. What is the legal basis for negotiation?
Consumers can claim re-performance under Article 111 of the the People's Republic of China Contract Law. If the merchant shirkers, it may further claim to terminate the contract under Article 94 of the the People's Republic of China Contract Law.
Article 94 A party may rescind a contract under any of the following circumstances:
The (I) is unable to achieve the purpose of the contract due to force majeure;
(II) prior to the expiration of the performance period, one of the parties expressly expresses or indicates by its own conduct that it will not perform its main obligation;
(III) one of the parties delays in performance of the main obligation and fails to perform within a reasonable period of time after being urged to do so;
(IV) one of the parties delays the performance of its obligations or has other breach of contract, resulting in the failure to achieve the purpose of the contract;
(V) other circumstances prescribed by law.
Article 110 If a party fails to perform a non-monetary debt or the performance of a non-monetary debt is not in accordance with the agreement, the other party may request performance, except in one of the following circumstances:
(I) it is legally or factually impossible to perform;
The subject matter of the (II) obligation is not suitable for compulsory performance or the performance cost is too high;
The (III) creditor fails to demand performance within a reasonable period of time.
4. If the negotiation fails, what should be paid attention to when requesting the consumer association to mediate?
Consumers should provide written materials or detailed oral records signed and sealed by the complainant when complaining to the Consumer Association. Its contents are as follows:
1. Complainant's name, address, postal code, telephone number, etc;
2. The name, detailed address, postal code, telephone number, etc. of the respondent;
3. The date, name, brand, specification, quantity, measurement, price, etc. of the goods purchased or services received;
4. The circumstances of the damage and the dealings with the operator;
5. Vouchers (copies of invoices, warranty certificates, etc.) and relevant supporting materials.
5. How is the time limit for safeguarding rights stipulated in the law?
According to the national "Regulations on the responsibility for the repair, replacement and return of some commodities", the state has made the following provisions on the time for the repair, replacement and return of some commodities:(1) "7 days. If the product fails within 7 days from the time of sale, you can choose to return, exchange or repair; "(2)" 15 days "regulations. If the product fails within 15 days from the date of sale, consumers can choose to replace or repair the product;(3) the "three guarantees of validity. The validity period of the three guarantees shall be calculated from the date of issuing the invoice. In the first batch of 18 commodities announced by the state, such as color TV sets, refrigerators, bicycles, air conditioners, watches, etc., the validity period of the three guarantees is six months to one year, and the main components are one to three years. The validity period of the three guarantees shall be deducted from the time occupied by the repair, and the validity period of the three guarantees after the replacement shall be recalculated from the date of replacement. (4) "30 days" and "5 years" provisions. The repairer should ensure that the repaired product can be used normally for more than 30 days. The producer shall guarantee to continue to provide spare parts that meet the technical requirements within 5 years after the product is discontinued.
6. Under what circumstances can "refund one to compensate three"?
The premise of "refund one to compensate three" is that the behavior of the operator constitutes fraud, and the so-called fraud refers to the behavior of deliberately informing consumers of false information, or deliberately concealing the true situation, so as to induce consumers to make wrong statements. Article 55 of the law on the protection of consumers' rights and interests stipulates that if a business operator commits fraud in providing goods or services, it shall increase the compensation for the losses suffered by the consumer in accordance with the requirements of the consumer, and the amount of compensation shall be three times the price of the consumer's purchase of goods or the cost of receiving services; if the amount of compensation is less than 500 yuan, it shall be 500 yuan. Where the law provides otherwise, such provisions shall prevail.
Key words:
Related News
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
