Recently, a Xiaopeng automobile owner broke the news to Aoyi News, saying that Xiaopeng Automobile's previous car purchase agreement had a "overlord clause", and after being administratively punished by 10,000 yuan, the contract currently provided to consumers still has illegal problems. Xiaopeng Motors responded that there is no problem with the content of the current contract version. What is right and wrong? People in the legal profession have different views on this.
The car purchase agreement was not filed and violated the law Xiaopeng Automobile was fined 10,000 yuan
According to the information provided by Mr. C, the whistleblower, on May 8, 2019, he purchased a Xiaopeng Automobile G3 at a Xiaopeng Automobile 4S store in Hangzhou and signed a "Xiaopeng Automobile Purchase Agreement" with Hangzhou Xiaopeng Automobile Co., Ltd. On August 30, Mr. C reported to the Hangzhou Gongshu District Market Supervision and Administration Bureau, saying that the agreement had not been filed in accordance with the law, and there was a hegemonic clause, requiring investigation and punishment.
The reporter learned from the "Administrative Punishment Decision Letter" issued by the Hangzhou Gongshu District Market Supervision and Administration Bureau to the party Hangzhou Xiaopeng Automobile Co., Ltd. on February 4, 2021 that on August 30, 2019, the bureau served the parties with a notice of order correction, requiring the parties to complete the filing of the "Xiaopeng Automobile Purchase Agreement". On September 16, law enforcement officers opened a case to investigate the suspected violations of the law. On September 19, the parties amended the original Xiaopeng Automobile Purchase Agreement and filed the new version of the Xiaopeng Automobile Purchase Agreement.
So, what are the problems with the original "Xiaopeng Automobile Purchase Agreement"?
According to the "Purchase Agreement" provided by Mr. C with Xiaopeng Motors, Article 10 "Applicable Law" reads "This Agreement shall be governed by the laws of the People's Republic of China." All disputes arising out of or in connection with this Agreement shall be resolved through friendly consultation between the parties. If the parties do not resolve such disputes by consensus, either party shall have the right to submit the dispute to the Guangzhou Arbitration Commission for arbitration. Article 11.3, "Service of Documents", reads: "You agree that when the court, arbitration institution, or Xiaopeng Automobile sends all kinds of documents/documents by courier, the date of delivery shall be the date of delivery, regardless of whether the delivery result is rejection, successful delivery or unsuccessful." ”
Pictured: The purchase agreement signed between the owner Mr. C and Xiaopeng Motors, the picture is provided by the interviewee
Hangzhou Gongshu District Market Supervision and Administration Bureau said that after investigation, from August 23, 2018 to September 19, 2019, the party Hangzhou Xiaopeng Automobile Co., Ltd. used the un-filed "Xiaopeng Automobile Purchase Agreement" to sell Xiaopeng Automobile G3, which has a total of 12 clauses, all of which were pre-drafted and reused in a fixed format, of which articles 10 and 11.3 did not take a reasonable way to remind consumers of precautions and give consumers the situation of explaining the content of the clauses.
The screenshot is derived from the administrative penalty decision issued by the Hangzhou Gongshu District Market Supervision and Administration Bureau against Hangzhou Xiaopeng Automobile.
The Hangzhou Gongshu District Market Supervision and Administration Bureau believes that Article 10 and Clause 11.3 of the agreement violate the relevant provisions of the Measures for the Supervision and Handling of Contract Violations, because after the case, the parties can actively cooperate with the administrative organs in the investigation, accept questions, take the initiative to explain the problems and correct the illegal acts. However, the illegal acts of the parties caused consumers to repeatedly complain and report, causing certain social impacts and harmful consequences, and after research and decision, the parties were given a warning and fined 10,000 yuan and handed over to the state treasury.
Is there any problem with xiaopeng's new version of the car purchase contract? Lawyer: There are still previous problems with illegality
The reporter learned that Xiaopeng Automobile has paid a fine and changed the relevant terms of the purchase agreement. However, the owner, Mr. C, still believes that the same problem still exists with the purchase agreement provided by Xiaopeng Motors to the owners.
According to a Contract signed with Xiaopeng Automobile in October 2021 provided by a Guangzhou car owner and a contract signed with Xiaopeng Automobile in December 2021 provided by a Beijing car owner, the clause "Applicable Law" reads that "this agreement shall be governed by the laws of the People's Republic of China." All disputes arising out of or in connection with this Agreement shall be resolved through friendly consultation between the parties. If the parties do not resolve such disputes by consensus, either party shall have the right to submit the dispute to the Guangzhou Arbitration Commission for arbitration in the language of Chinese. The arbitral award shall be final and binding on both parties. In the detailed rules of "Service of Documents", it reads: "You agree that when the court, arbitration institution, or Xiaopeng Automobile sends all kinds of documents/documents in the form of courier, if you refuse to accept them without any reason, they shall be deemed to have been served." ”
The screenshot comes from the contract signed by the owner of Guangzhou and Xiaopeng Automobile
So, is the contract that Xiaopeng Automobile now provides to the owner of the car "repeat the old mistakes"?
In this regard, Xiaopeng Automobile responded to Aoyi News that there is no clause that infringes on the rights of consumers in the current contract version. At the same time, Xiaopeng Automobile also said that this incident was a matter that had been completed in September 2019. Xiaopeng Automobile will, as always, abide by the concept of legal operation, abide by the relevant regulations of various regions, and operate legally.
However, people in the legal profession have different views on the current contract version of Xiaopeng Motors.
"I believe that the revised clause still has the previous illegal problem, still excludes the consumer's right to file a lawsuit over the standard clause dispute, and makes an exclusive agreement on the jurisdiction of the court over the standard clause dispute." Chen Qian'er, a lawyer at Beijing Yingke (Guangzhou) Law Firm, said that according to the provisions of the Civil Code, the expression of intent needs to reach the other party to produce corresponding legal effects, such as the letter is sent without a reply from the other party, that is, whether it is received without confirmation with the other party as service, which obviously does not meet the relevant provisions of civil service, and the relevant notice clause is only for consumers, and consumers notify enterprises but fail to obtain the same right of service, which is obviously unfair. Secondly, courts and arbitration institutions have strict service requirements for the service of documents, and enterprises should not restrict the conditions for successful service through standard terms.
Mr. C said that he asked Xiaopeng Automobile to publicly apologize to consumers and car owners, but Xiaopeng Automobile has not responded to this appeal.
Aoyi news reporter Lu Ruoqing