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want
Car complaints increased by 19.28%, and the hot spots were all related to new cars.
When the data is encrypted layer by layer by the car company, how can the owner get the data?
When the burden of proof lies with the owner, how can the owner seek help?
What are the front actions to reduce the difficulty of defending the rights of new cars?
What are the trends in new car rights protection? Will power locking become the norm in the industry?
The good news is that penetration of new cars has climbed more than expected. The bad news is that the rights of the new car have exploded.
According to the data released by the China Consumer Association, the number of complaints about automobiles and auto parts in 2021 reached 41624, an increase of 19.28%, and the eight hot spots of complaints were all related to new cars.
For example, the safety of new energy vehicles, battery quality problems, mileage shrinkage, promises not to be fulfilled (high-performance chips), price change disputes, arbitrary modification of online information descriptions of sold models, after-sales service systems, etc. can not meet the rapid growth of new energy vehicle demand, data storage problems, etc.
How to "get out of trouble" for the protection of new cars is a topic worth exploring in the industry.
In the second issue of the "New Bureau" column, Phoenix Auto invited:
Tesla "brake door" rights car advocate lady
Mr. H, the owner of the "lock electric door" rights protection group of WM Motor
Weilai/Euler Car Owner Rights Lawyer Lin Lihong of Beijing Quanyou Law Firm
Qiu Kaijun, founder and editor-in-chief of Electric Vehicle Observer
Two car owners and lawyers appeared to share their "practical" experience, and the industry KOLs supplemented by industry analysis, condensing the reference ideas for ordinary consumers.
Rights protection requires three lawsuits, one for two years
—Ms. Zhang, owner of Tesla's "brake door" rights protection car
"Ever wondered if you're fighting the world's largest electric car manufacturer?"
"I never thought about fighting anyone, it was an accident, and I just wanted to solve the problem," Ms. Zhang said.
Recently, Ms. Zhang's rights protection case has finally waited for the stage of progress:
The dispute over the right to reputation of Ms. Zhang v. Tesla and Tesla Vice President Ms. Tao Lin was heard in public on December 24, 2021, and will be decided shortly, and the trial period for the case is April 8.
This is just one of the lawsuits, she sued Tesla for three lawsuits.
The latest news is that another lawsuit, Ms. Zhang v. Tesla Data Dispute, was filed on March 12.
"Only when I get the results of the data case can I have evidence to fight the final vehicle rights defense lawsuit with Tesla."
This process, she calls it, "I need to climb over three mountains, one over two years." ”
Ms. Zhang's Tesla rights protection incident, saying that it is "well known" is not an exaggeration.
Since the Shanghai Auto Show on April 19, 2021, "Standing on the Roof" so far, the comment said that Ms. Zhang did not step on the roof of Tesla, but stepped on the pain points of smart cars.
The pain point of Ms. Zhang's rights protection lies on the "data" that smart cars are proud of.
"Last year, 315, I communicated with Tesla people under the intervention of the regulatory authorities, and the Tesla staff at that time clearly told me that it was provided to you, and you couldn't understand it. I said you can also provide it to the regulatory authorities. Then he said that the leader could not understand it. This behavior made me very angry at the time, and I felt that Tesla did not fully respect consumers, or even despise the regulatory authorities. ”
After defending her rights offline at the Shanghai Auto Show, the pressure of supervision and public opinion made Tesla finally give her a copy of the "data".
"When I got the data, I compared it to what other Tesla owners got. There are only 11 items of data for me, and more than 20 data for other car owners. Moreover, I have parameters that others do not have, and parameters that others have that I do not have. In particular, important data on the brake pedals are missing. ”
Therefore, she also asked Tesla many times, "Is this data complete?" Tesla's staff never dared to answer my question. ”
In addition to the detailed data in the cloud, she could not get it, and the data in the black box in the car was also encrypted by Tesla.
"The data in other people's black boxes can be read, tesla is an encrypted file, which must be uploaded to Tesla's server to be able to decode."
Although she has placed the accident vehicle in a place she thinks is safe and camera-monitored, she knows that Tesla may still get or change the data remotely.
"Although the data in the black box has only a few parameters and a short time before the accident, it can be compared with the data provided by Tesla", in Ms. Zhang's plan, she will get the remote detailed data and then open the black box with the intervention of a third party. "Black box data leaves a record if tampered with."
Here, she also reminded other rights protection car owners not to try to read this data themselves, that is, to destroy evidence, and the extraction of data must be carried out under the witness of judicial institutions, notary publics, and both parties.
In addition to data, detection is also a challenge.
"When I first went to this regulatory department to mediate with Tesla, I was told that there was only one third-party testing agency in China that could detect imported new energy vehicles, and this one was the one that had cooperation with Tesla and did not have judicial qualifications. As an ordinary consumer, especially female users are completely ignorant. ”
Especially when she saw that on March 11, 2021, there was a Hainan Tesla brake failure incident, and Tesla's third-party test report was written with the words "precursor Tesla", which was a collapse of trust. Because Tesla has never produced a front-drive version.
"I feel like facing Tesla is facing a huge pit. It was this third-party test that made me feel seriously defensive, and I had to be very cautious with every step I took. ”
After experiencing the storm and abuse, being framed as a spy for other car companies, leaking the privacy of her family, being threatened by phone calls, and even lured with money, she gradually realized that the huge power gap between her and Tesla, who once admired and worshipped, was "like ants and elephants." "Tesla's legal counsel is very professional, going from city to city to sue or respond to its own users."
As a former loyal user of Tesla, she was once attracted by Tesla's strong language of changing the ecological environment, and also let her girlfriend buy a Tesla.
Since defending her rights, the money she has spent on this can already buy a new Model Y.
"Tesla global vice president Tao Lin said that I have someone behind me", she said, "sometimes I really wish there was someone behind me, then I will not be so lonely", in order to reduce the cost, she runs a lot of procedures by herself, constantly urging the process.
"It takes two years for each of the three mountains to be turned over, because a normal lawsuit, from case filing and mediation, pre-trial conference, court trial and other judgments, first instance, second instance, almost two years. Can you imagine an ordinary person who faces all this. ”
She called on the regulatory authorities to give more support, "considering the interests of those of us who are the first group of car owners who support the national new energy policy, so that the industry can truly develop healthily." ”
Speaking of the lawsuit, she is confident of winning the upcoming dispute over the right to reputation.
"Tesla said I lied, made trouble, didn't dare to test, and demanded high compensation. Some media have called me and my husband the underworld. Someone else approached my lawyer and said that as long as I didn't sue Tao Lin, they wouldn't sue me for 5 million yuan. In fact, it doesn't matter if they sue me, if the trial I also have a stomach to say. I survived misunderstandings, threats, cyberbullyings, felt stronger, and learned a lot about smart electric vehicles. ”
At the end of the dialogue, she provided a guide for the protection of new energy vehicle owners, reminding everyone to pay attention to three points:
First, when the vehicle has some bizarre accidents, save your driving recorder for the first time. If conditions permit, as far as possible, a third-party monitoring device should be installed on the car. After the incident, you should retrieve your road monitoring as soon as possible, and your driving recorder should be backed up more often, and keep them all.
Second, the vehicle is sealed and disconnected at the first time and placed in a monitorable area. All relevant communications must be legally recorded.
Third, you should retrieve the data of the vehicle before and after the accident from the other party, because this can compare the data of your vehicle before the accident, in the normal state and the data at the time of the accident. It is necessary to pay attention to whether the data given by the other party is officially stamped, and the work card and name of the relevant personnel of the car company. It is also necessary to complain to the regulatory authorities and to the recall website of the General Administration.
For lucky car owners who have not had an accident, it is best to use a dashcam to photograph actions such as driver operation and brake pedals on a daily basis.
It is easy to lock up electricity, but it is difficult to produce evidence; it is recommended to collectively safeguard rights
—Owner of the "lock electric door" rights protection group of WM Motors
The latest result on the protection of the electric door of the WM car lock is that there are third-party test results showing that the three WM cars participating in the test, the charging pile full charge display power 100%, and the actual power read by the detection agency with the decoder is 89%, that is, 11% of the power is locked, this locking method is called "locking electricity", artificially preventing the vehicle from being fully charged.
"The maximum difference is about 6-7 degrees, and the power difference is 11%-12%," said Wang Xudong, president of the Testing and Appraiser Branch of the China Automobile Dealers Association.
The reason is that around New Year's Day this year, a number of Wei horse-drawn carriage owners found that their cars were suspected of being locked up after participating in the official "welfare testing" activities of Weima. Unable to reach effective communication with the authorities, the owners spontaneously organized the WM Auto Rights Protection Group.
With the formation of the rights protection group, during the Spring Festival this year, car owners found that their cars were suspected of being "fake unlocked" through OTAs, and the official legal information of WM was silently changed. The official cold treatment and evasive attitude has made more and more car owners feel angry, and the rights protection group has continued to increase.
Mr. H, the owner of the group, is one of the 600 car owners in the WM Motor Rights Protection Group and one of the 173 joint lawyer letters sent to WM Motors.
Talking about the progress of the incident, Mr. H said that WM officials have not paid attention to the owners so far.
"From the perspective of WM PUBLIC RELATIONS, if you stand up and deal with it now, you may feel that it is adding fuel to the fire." If you drag it out and be patient with consumers, you can not hurt WM's muscles and bones, and at the same time, consumers can't come up with evidence that is practical enough for regulators to intervene," the owners tried to deduce the official ideas of WM.
Mr. H said that in view of the official move of WM, the owners of the rights protection car unified their opinions and steps: everyone separately fixed good witnesses, physical evidence, including technical evidence, exposed through the media, and finally went through legal procedures.
The former situation of WM Car's power lock is that at the end of 2021, there have been a number of spontaneous combustion incidents of WM car batteries across the country.
"Under the premise that there is an obvious bottleneck in battery technology, car owners are not opposed to locking the electricity, and everyone understands that the locking itself is to leave a safety redundancy." However, car companies can completely lock the electricity before the car leaves the factory, so that consumers can understand the real endurance under the premise of safety. However, WM's approach is to push the safety redundancy to the limit before delivery, wait for the owners to have a series of problems, and then secretly lock the electricity. ”
Mr. H said he and most of the owners of the carriage were demanding that batteries with the same range as official propaganda be replaced under the premise of safety assurances.
"The plan we proposed is technically feasible, and in 2019, WM officials also proposed a similar user upgrade plan. Although the battery accounts for a large proportion of the cost of new energy vehicles, but the owner's old battery is only three years old, according to the battery industry in the battery recycling standards, the unqualified part is removed and reassembled, in fact, it is a new battery. Therefore, for manufacturers, the cost of replacing batteries is not as high as the outside world imagines. In addition, it is also possible to use some ways such as adding more battery packs to solve the current demands of the owners of the Wei carriage. ”
In the process of rights protection, what bothers car owners the most is that "the burden of proof is not on the car companies".
In the field of consumption, the consumer law stipulates that high-tech products such as washing machines, televisions and other commodities are subject to the burden of proof on enterprises when defending their rights, but at present, new cars have not yet implemented this. Smart cars are more complex commodities than home appliances, and it is more difficult for consumers to prove and the cost of rights protection is higher.
Therefore, in the case that the supervision cannot be fully followed up, new energy vehicle companies should assume the responsibility of solving problems during the critical period of immature technology.
However, at present, car companies are reluctant to take the initiative to take responsibility and choose to transition the cost of problems caused by poor quality to users.
"The safety and battery life of the car leaving the factory should not be a matter of choosing one or the other."
Talking about the feelings of forming a team to defend their rights, Mr. H said that to a certain extent, it will be more effective than defending rights alone.
"For example, as a user, I want to prove it, but the change in the use side of a single user cannot be regarded as very direct evidence, but can only be used as presumptive evidence." It is difficult for a single person to complete the evidence collection work, but a large number of car owners in all aspects, bit by bit, will converge into a more complete chain of evidence. In this process, car owners can more efficiently share their respective information and channels, and communicate with each other. At the same time, more than 170 of us jointly issued lawyer letters to avoid information mixing in a way that occupies the minimum social resources, so that the social, media, and relevant regulatory departments can understand our appeals more clearly and focused. ”
It is more difficult to prove the rights of new cars
—Weilai/Euler Car Owner Rights Lawyer Lin Lihong of Beijing Quanyou Law Firm
The outside world has linked lawyer Lin Lihong to the rights protection of new cars, mostly stemming from a traffic accident that occurred on August 12, 2021, in the Hanjiang section of the Shenhai Expressway.
In the accident, the owner of the WEILAI ES8, Lin Wenqin, the founder of Shangshan Ruoshui Investment Management Company, Yitong Tianxia Catering Company and Meiyihao Brand Management Company, unfortunately died, and Lin Lihong was his lawyer.
The case has taught smart cars a solemn lesson in life safety, the driving technology of developing intelligent and connected cars has been tortured, and the industry and especially consumers have called for serious protection from the law.
"After the outbreak of the new energy vehicle problem, in fact, the relevant departments quickly focused on strengthening the corresponding measures and urgently issued relevant regulations, but to understand that national legislation needs to go through a certain process," Lin Lihong said.
How can lawyers protect their rights for consumers when the national standards and industry standards that directly guide automobiles are not yet complete?
Lin Lihong said that at present, only indirect rights protection can be passed through other relevant laws.
"For example, if the incident involves the right to know in the Consumer Rights and Interests Protection Law, we will play the right to know." Car companies need to produce evidence, and when delivering vehicles to users, they have fulfilled their obligation to inform, rather than requiring consumers to prove that they have not received the notification. Just like the food packaging in the supermarket should actively and accurately indicate the ingredients of the food, this is the responsibility of the manufacturer. ”
Some manufacturers will say that the user manual has fulfilled the right to know.
"Here's a question, is the user manual available to consumers before or after they buy?" Most of the time, consumers get the user manual is paid a deposit for a long time, when the vehicle is delivered, rather than paying the deposit at the same time. But the real informment is before the purchase occurs, just like I need to be clear about the corresponding data such as fat content before buying milk. Instead of telling the car consumer after an accident, the car company tells him again, which is mentioned on the first few pages of the user manual. Even if the country currently has no legal provisions, there should be corresponding industry standards, taking into account the actual situation of the product and the user's usage habits. ”
Another direction of rights protection is the corresponding provisions on defective products in the Product Quality Liability Law.
"Automobiles are commodities and are subject to the Product Quality Liability Law. However, the current difficulty is that it is not clear that car companies need to bear the burden of proof, and more often, consumers are giving evidence. This requires consumers to have legal awareness and retain the corresponding materials while purchasing vehicles. When I do a lot of rights protection, I found that many consumers do not keep the car purchase contract when buying such a large commodity as a car. There is no car purchase contract, which means that you want to prove the buying and selling relationship between the two parties, and you have to provide a lot of auxiliary evidence such as network remittance vouchers and chat records between the two sides, which invisibly increases the burden of proof for yourself. ”
Some 4S stores target this psychology by tempting consumers to give up invoices in the form of small prizes and small rights. In this case, Mr. Lin said that it will also bring trouble to claim the corresponding damage liability.
In addition to the above possible rights protection grippers, Lin Lihong also talked about the constraints of rights protection from the perspective of lawyers.
"For example, the ability of individual consumers to collect evidence is relatively weak, especially the data is kept by car companies, it is difficult to retrieve data, and its authenticity is also questionable." In addition, many appraisal agencies do not understand the principles of smart cars, do not understand the software and algorithms, which also makes it difficult for the appraisal industry to provide truly fair appraisal results. ”
"A lot of early adopters choose new cars to either punch the look or catch up with the fashion. Due to the mismatch of information and the difference in knowledge structure, in the face of the publicity of car companies, it is difficult for consumers to find the difference between delivery of vehicles and public relations publicity, but false publicity actually contains elements of fraud and breach of contract. ”
Because car driving involves public safety, it is within the scope of the Road Traffic Safety Law, but the current relevant legal provisions actually give new car manufacturers more space.
"The product promoted by the manufacturer is an automatic driving or auxiliary driving function, but when the accident is determined according to the Road Traffic Safety Law, there is no corresponding detailed rule for liability for the traffic accident caused by the quality of the vehicle, and at present, once the accident occurs, the driver (consumer) will eventually pay the bill, but this is unfair." Because when the traffic police determine the responsibility for the accident, they still use the evaluation thinking of the traditional car, believing that there is only primary responsibility and secondary responsibility, and it seems that there is only the problem of the front car and the rear car. ”
Call for increased post-mortem surveillance of new cars
—Qiu Kaijun, founder and editor-in-chief of Electric Vehicle Observer
"The problem of new cars is increasingly being exposed because they have entered the stage of popularization. In previous years, such as fires, etc. have occurred, more serious and worse than now, but it may have been handled and controlled by car companies better before, and more people have not known. Although there are now more complaints and controversies about new cars, they are still a minority. ”
When it comes to the protection of new car rights, involving the problem of battery fire and power locking, Qiu Kaijun believes that the vehicle problem that has occurred is difficult to fundamentally solve, and it is more to seek rights protection claims.
"For example, it is possible for car companies to recall and replace all problem batteries, but it is not feasible." Although I have also heard that some car companies secretly recall all batteries, because batteries account for 30% of the total cost of the vehicle, or even higher. Therefore, it is more practical to rely on rights protection claims when there are problems. ”
Qiu Kaijun said that in the long run, the continuation of this phenomenon should not be condoned, and the reduction and elimination of the above problems require more technical support and support.
"However, there is a good trend, after a period of promotion, car companies have shown signs of returning to sanity in the pursuit of new cars." The energy density of the power battery can not be so high, and there is no need to sacrifice safety too much. Since battery life is no longer a necessary selling point, for example, the industry is no longer crazy to promote 811 batteries, but to use back 622 batteries, including the recent return of lithium iron phosphate batteries. ”
It is also from this that he believes that the phenomenon of locking electricity will be reduced in the future.
"Now car companies are also making corresponding efforts, such as the development of battery pack technology such as Dayu batteries and magazine batteries." But it is enough to show that many car companies have begun to pay attention to battery safety issues, and other similar problems, such as electric drive, electric air conditioning, automatic driving, automatic cockpit and other problems, fundamentally rely on technological progress. ”
Qiu Kaijun mentioned the importance of government regulatory departments in industry norms.
"Car owners alone can't put pressure on them, and regulators can actually play a more important role." China's auto industry places more emphasis on pre-management, such as product access approval. However, in terms of post-supervision, it is relatively poor. ”
Qiu Kaijun said that in some countries, the supervision after the fact is quite strict, and if there is a group product quality problem, even a small problem may lead to a disaster. This may be something we need to consider in the top-level design.
epilogue:
At the end of the second round table salon of "New Bureau", when asked whether they still supported the new car, the four guests all replied in the affirmative.
They said that they chose to support the development of new cars and support the national strategy from the perspective of environmental protection and convenience. Don't demonize new cars because problems erupt.
The defects and problems of any new technology need to be compensated by services, and the security mechanism should be used to avoid risks, and not let the eager response to the national call for "crab eaters" become sacrificed guinea pigs.
Eagerly await the power of regulation.