Franchisee Cooling-off Period Refund Case: The plaintiff in this case has not opened a store until the litigation and has not yet carried out franchise business, and it can be considered that within a reasonable period of time for the exercise of the right of termination, the plaintiff in this case has been sentenced to refund the full franchise fee
The cases are as follows:
On July 10, 2016, the plaintiff, Mr. Lin, signed a Contract Agreement with a certain company of the defendant, stipulating that the defendant authorized the plaintiff to join the ** start-up store in a certain district with the logo of ** enterprise. However, the plaintiff has been unsuccessful in finding a suitable storefront, and the defendant has not provided operational guidance to the plaintiff, resulting in the plaintiff's failure to open a store so far. The plaintiff complied with the provisions of Article 12 of the Regulations on the Administration of Commercial Franchises on the "Cooling-off Period for Joining", and learned about the franchisee's cooling-off period refund case, so it sued the court, requesting: rescission of the Contract Agreement; Refund the franchise fee of 21800 yuan and the material fee of 23925 yuan;
After trial, the court held that:
The content of the "Contract Agreement" involved in the case conforms to the basic characteristics of the franchise, and the contract involved in the case should be a franchise contract.
Article 12 of the Regulations on the Administration of Commercial Franchises stipulates that "the franchisor and the franchisee shall stipulate in the franchise contract that the franchisee may unilaterally rescind the contract within a certain period of time after the conclusion of the franchise contract." (i.e. the provisions of the cooling-off period for joining)
It can be seen from this that the right of the franchisee to unilaterally rescind the contract is a legal right, the purpose of which is to give the franchisee in a weak position a certain "cooling-off period", which cannot be excluded through the contract.
Therefore, although the Contract Agreement signed by the plaintiff and the defendant in this case does not stipulate the unilateral right to rescind the contract and the time limit for its exercise, it still cannot exclude the plaintiff's right to unilaterally rescind the contract. In the absence of an agreement between the parties, a comprehensive judgment shall be made on the basis of the performance of the contract whether the plaintiff's exercise of the right of rescission falls within a "certain period of time".
The Court held that the fundamental purpose of the franchise contract is to be used by the franchisor under the guidance of the franchiser to carry out the franchise business under a specific business model by using the relevant business resources of the franchiser.
In this case, if the plaintiff had not opened a store until the time of litigation, was in the stage of finding a suitable storefront, and had not actually used the franchiser's business resources to carry out the franchise business, it could be considered that it was within a reasonable period of time for the exercise of the right of rescission. The defendant also did not provide it with operational guidance or operation management norms, so the plaintiff had not actually used the defendant's business resources, and at this time, the plaintiff submitted a claim to terminate the contract, and this court supported it.
Article 97 of the Contract Law of the People's Republic of China stipulates: "After the contract is terminated, if it has not yet been performed, the performance shall be terminated; Where performance has already been performed, depending on the performance and the nature of the contract, the parties may claim restitution, take other remedial measures and have the right to claim compensation for losses. "The plaintiff's claim to refund the investment fee of 21,800 yuan and the material fee of 23,925 yuan is based on the law, and this court supports it.
It should be pointed out that the Regulations on the Administration of Commercial Franchises have given relatively adequate protection to franchisees in order to regulate commercial franchise activities, promote the healthy and orderly development of commercial franchises, and maintain normal market order. However, as the subject of full capacity for civil conduct to engage in commercial activities, the franchisee should also maintain a basic and reasonable duty of care and should not blindly join.
Final Court Judgment:
Termination of the Contract Agreement; The defendant returned to the plaintiff 21,800 yuan in investment fees and 23,925 yuan in material costs;
▸ Cases related to "joining cooling off period" (see more) ◂
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1. What is the cooling-off period for joining?
2. What is the cooling-off period for franchisees?
3. What should I do if I regret that I did not write the cooling off period when I joined the contract?
4. Is the three-day cooling-off period of the franchise contract legal?
5. Is it illegal not to write a cooling-off period in the franchise contract? Can I refund the franchise fee? Court: Without writing a "cooling-off period", you can unilaterally terminate the franchise contract
6. If the franchise contract does not stipulate a "cooling off period", the franchise fee will be refunded in full by 50,000 yuan
7. Does the franchise contract not stipulate a cooling-off period? Courts: Circumvention of the law is not protected by law
8. The franchise contract writes a 3-day cooling-off period, can the franchise fee be refunded if it exceeds? Court: 3 days is clearly too short and should be within a reasonable period of time
9. The franchise contract stipulates a 10-day cooling-off period, can I refund the fee after that? Court: The plaintiff has lost the unilateral right of rescission within the cooling-off period
10. The franchise contract stipulates a 3-month cooling-off period, can I refund the franchise fee after the cooling-off period? The court judgment can
11. Can I refund the franchise fee in full during the cooling-off period? How much can I get back? Court Case: Settled by time
12. Can I refund all the amount during the cooling-off period? Case: After signing the franchise contract for 1 month, the court decided to deduct 1,000 for 41,000 franchise fees
13. How long is the legal cooling-off period for joining? Court: The cooling-off period should be "appropriate until the operating resources have been actually utilized"
14. How long is the cooling-off period for joining? The Court held that "it would be appropriate to limit the use of the franchisor's business resources when beginning to utilize"
15. What is the maximum cooling-off period for franchise contracts? In this case, the cooling-off period can still be applied when the contract period has expired, and 70% of the franchise fee can be refunded
16. How long is the cooling-off period for the withdrawal fee? In this case, the franchise contract was signed for 4 months before the refund was filed for 7 months before the lawsuit was filed, and the court could no longer claim the unilateral termination of the contract during the cooling-off period
17. How long is the cooling-off period for franchise fees valid? Case: The plaintiff has used the defendant's business technology assets and no longer enjoys the unilateral right of rescission
18. What is the cooling-off period for franchises? This case: It has been 2 years since the signing of the contract to the prosecution, which is not a "reasonable period" of cooling-off period
19. Can I get a full refund during the cooling-off period of the franchise? In this case, the contract was terminated within 6 days, and the franchise fee was deducted by 10,000 yuan as appropriate
20. If the termination of the franchise contract is within the "cooling-off period", should I bear the liability for breach of contract to compensate for the loss? The defendant in this case joined the company without fault and did not bear the loss
Excerpt from: Nanjing Railway Transport Court (2017) Su 8602 Min Chu No. 309 Judgment
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