Experts caution consumers against the pitfalls of online goods presales

□ Zhao Chenxi, a reporter of this newspaper

When he received the notice from the store, Liu Youyou, a tide play enthusiast who lives in the Chaoyang District of Beijing, had a premonition that this time he would be "planted".

Half a year ago, he booked a building block bear doll in an online store, but not long ago the store told him that this doll can only be obtained by lottery in the store, and the winning lottery is eligible for supplementary payment. In the end, Liu Youyou, who did not win the lottery, received a full refund of the deposit from the store.

Half a year of waiting for the end is an empty, such a thing Liu Youyou experienced more than once, whether it is ordering models, or ordering shoes and clothes, he has encountered the situation of "an empty after the pre-sale".

Online pre-sale has become one of the most popular forms of e-commerce at present, but it is not uncommon for such behaviors as merchants to delete orders and not ship for a long time. Zhang Tao, a partner at Beijing Deheng Law Firm and director of the Network and Data Research Center, said in an interview with the Rule of Law Daily that in addition to reminding consumers to be vigilant against the "traps" in online pre-sale, it is also necessary to further consolidate the responsibilities of e-commerce platforms and comprehensively regulate online pre-sale behavior.

Online pre-sales allow merchants to make steady profits

For the network pre-sale, Liu Youyou has actually been more resistant, paying a part of the money first, and can not take the goods immediately, which always makes him have a feeling of "spending money in vain". But he found that more and more merchants are keen on online pre-sale today, and if they are not careful when shopping online, they may fall into the pre-sale "trap" and become a member of the waiting army.

"Merchants adopt the pre-sale model mainly to reduce their own business risks and prevent pressure on goods." The online shop advocates that Meng takes the clothing business she is engaged in as an example, saying that due to the impact of the epidemic, people's travel is restricted, and the demand for new clothing has also declined, but the clothing from fabrics, accessories, and then to factory processing, there are limits on the number of minimum orders, if you rush to buy, you can not sell it in the end, and the outdated clothing can only be backlogged in the warehouse, further increasing the storage cost. Therefore, she has established several customer groups, will send some new models in advance in the group, if there are more customers who respond, she will then list the goods in the online store, sell in the pre-sale mode, and order from the factory after counting the quantity and collecting part of the deposit.

Zhang Meng said that because consumers cannot directly get the goods in the pre-sale, the "compensation" given by the merchant is the discount, and the reservation price will be preferential to the spot price of the commodity, so as to achieve the "win-win" situation in which the merchant reduces the risk and the buyer enjoys the discount.

But Liu Youyou does not think so, he feels that merchants like online pre-sale because they can use this to achieve "steady profit and no loss". He took the recently unsubscribed building block bear as an example, the store to the manufacturer cut the order as the reason, the reservation customer for lottery sales, and finally only about half of the customers signed the supplement, and only the building block bear, there were more than 200 reservations, each person paid a deposit of 1200 yuan, so that in the six months before the official shipment of goods, the merchant is equivalent to obtaining an "interest-free loan" from the reservation customer.

Chen Xiaofei, a post-"95" online shopping expert, agreed with this, and she found that many merchants were actually using the pre-sale time to play the "time difference" to make profits. For example, the pre-sale price of some seasonal clothes seems to be cheap, but the merchant will set the delivery period to 30 days or even longer after payment, and some clothing is even out of season after the goods arrive, even if they buy spot will be "discounted", which does not reflect the pre-sale price advantage at all.

Liu Youyou noted that many e-commerce companies have also played the "word game" of "deposit" and "deposit" with consumers, and some large platform e-commerce pre-sale goods generally let consumers pay "deposits", while some small merchants, pre-sale goods require consumers to pay "deposits".

In this regard, Zhang Tao explained that the "deposit" is a certain amount of money paid by one party to the other party in advance to ensure the performance of the contract, which has the role of guarantee and the role of proving the formation of the contract, and when the other party does not perform the contract, it should double the deposit; and the "deposit" is an advance payment, does not have the nature of guarantee, even if the final transaction fails, the merchant only needs to return the "deposit" collected in full.

Running away after the pre-sale of goods is suspected of being a crime

"Understand it, selling spot in this year may be despised by peers" "Once paid one hand for delivery, now one hand to pay for the waiting"... For the online pre-sale, many netizens have complained. On the consumer complaint platform Black Cat complaint, the reporter entered the "pre-sale" keyword, showing a total of more than 46,000 results, basically covering all mainstream e-commerce platforms, and the complaint content mainly included prepayment, delivery time, price increase after booking, product quality problems, etc.

In the view of Chen Yinjiang, deputy secretary-general of the Consumer Rights and Interests Protection Law Research Association of the China Law Society, pre-sale is a normal business behavior, but the premise is that the merchant must have a product and can ensure the quality of the product and the delivery time.

"Merchants can't pass all the risks on consumers while using pre-sales to reduce their own risks." Chen Yinjiang noted that some merchants now do not have a fixed purchase channel, nor will they provide consumers with an order contract, but after receiving the consumer's advance payment, they will order and ship, which is not only extremely risky, but also suspected of infringing on the consumer's right to know and the right to property security, because according to the provisions of the Consumer Rights protection law and the e-commerce law, the merchant needs to provide the consumer with true, comprehensive and accurate product information.

For the situation where consumers most "hate" the merchant who collects the advance payment and runs away or unilaterally cuts the order, Zhang Tao believes that the merchant is not only suspected of civil breach of contract, but may even be suspected of criminal offenses such as fraud.

Zhang Tao explained that according to Article 587 of the Civil Code, if a merchant accepts a deposit but does not perform the debt or the performance of the debt is not in accordance with the agreement, so that the purpose of the contract cannot be achieved, the deposit should be returned twice. The merchant's behavior of running away after receiving the payment, cutting orders, etc., is also suspected of constituting fraud against consumers, and consumers not only have the right to demand a refund from the merchant, but also have the right to claim punitive damages. At the same time, according to the provisions of item 8 of article 48 of the Consumer Rights and Interests Protection Law, if a business operator deliberately delays or refuses without reason for a consumer's request for refund of the purchase price or compensation for losses, the market supervision and management department has the right to order corrections, impose a fine, or even order the suspension of business for rectification or the revocation of the business license.

In addition, Zhang Tao pointed out that for some merchants who obtain consumer deposits or other advance payments through pre-sale methods and then run away and escape, they may also be suspected of constituting contract fraud.

E-commerce platforms should regulate pre-sale behavior

In Liu Youyou's order, there are still two models that have been booked for more than two years but have not yet been shipped. "When the reservation was made, the merchant said that the shipment date was only approximate time, the specific sale date prevailed, due to the long booking time, the buyer must directly confirm the receipt after paying the reservation payment, and the reservation is considered successful." Liu Youyou said that this kind of booking method is very common in the model circle, because most of the model shipment information can only be mastered by agents, consumers are difficult to know, and they can only be at the mercy of merchants if they want to buy goods.

"Pre-sales cannot be premised on sacrificing the legitimate rights and interests of consumers, and merchants must respect consumers' right to know, their right to make independent choices and their right to fair trade." Zhao Zhanzhang, a special researcher at the E-commerce Research Center of the Network Economic Society, pointed out that some merchants take advantage of information asymmetry and are in a "strong" position in the pre-sale model, and even set some requirements such as pre-sale goods that are not returned or replaced, which is an obvious "overlord clause". According to Article 25 of the Law on the Protection of Consumer Rights and Interests, except for goods such as goods customized by consumers, fresh and perishable goods, business operators use online means to sell goods, and consumers have the right to return the goods within seven days from the date of receipt of the goods, without explaining the reasons.

In view of the chaos of online pre-sale, Zhao Zhanzhan believes that the responsibility of e-commerce platforms should be further consolidated, and the platform should not only have the responsibility of reviewing and supervising the merchants to settle in and list the goods, but also strengthen the supervision of the pre-sale behavior of the merchants, and consider introducing corresponding platform normative documents to further regulate the online pre-sale model.

Zhang Tao agrees, he believes that as an important force in collaborative governance, e-commerce platforms should play a more important governance role in regulating online pre-sales.

In fact, for the online pre-sale model, some e-commerce platforms have also been regulated. For example, on March 30, 2022, the Tmall platform released the optimized "Tmall Pre-sale Business Management Specification". Some e-commerce platforms do not give priority to products with a pre-sale period of more than seven days; they stipulate that sellers who violate their commitments such as delivery time, transaction price, and delivery method need to pay 10% of the actual transaction amount of the product to the buyer as a liquidated damages.

Zhang Tao suggested that regulators can guide e-commerce platforms to address this issue through administrative guidance or issuing compliance guidelines. For example, according to the different categories of products sold, the maximum period of online shopping pre-sale can be limited, and the platform should conduct interviews and penalties for merchants who frequently exceed the pre-sale period to ship or often do not ship. At the same time, it is also necessary to smooth the channel for consumers to complain about the pre-sale, and take timely relief measures for the problems reflected by consumers.

"Consumers must have a necessary understanding of the risks of online pre-sale, and they should choose carefully for pre-sale products." Zhao Zhanzhan reminded that if you must buy pre-sale goods, in addition to understanding the qualifications and scale of the merchants, you must also clarify the pre-sale rules, delivery time, commodity situation, etc., and also save the relevant shopping vouchers, and actively protect your rights once there is a problem.

This edition of the draft/Li Xiaojun

Source: Legal Daily