Primary and secondary schools and kindergartens in most provinces and cities across the country are about to open in the fall. According to data from the National Health Commission, at this stage, the number of infants under the age of 3 in mainland China is about 40 million, and more than 30% of infant families have childcare needs. So, how should parents choose a formal childcare institution? If infringement occurs, how can legal protection be sought?
1. Beware of informal institutions that "rub brand-name"
In recent years, childcare is becoming a new choice for the new generation of parents to raise their babies, especially after the implementation of the "comprehensive two-child" policy, the problem of infant care has become more prominent. Childcare institutions refer to institutions that provide full-day care, half-day care, timed care, temporary care and other childcare services for infants and young children under the age of 3. Because infants and young children are extremely fragile and individuals do not have the ability to protect themselves, how to choose high-quality and reliable from many childcare institutions often makes parents anxious.
If parents accidentally choose a "unregistered" or "brand-named" childcare institution, it may bring risks to their childcare life. In 2019, the National Health Commission and other four departments jointly issued the Measures for the Registration and Filing of Childcare Institutions (Trial), article 3 of which stipulates that those who set up childcare institutions shall handle registration and filing in accordance with the provisions of these Measures. Article 4 stipulates: Where a child-care institution in the nature of a social service organization is established, an application for registration shall be made to the civil affairs department at the county level or above. Where for-profit childcare institutions are established, they shall apply for registration with the market regulatory department at or above the county level. It can be seen that when choosing a childcare institution, parents should first verify whether it has been registered and recorded.
Due to the brand identity psychology of many parents now, some childcare institutions have induced parents to sign up for daycare by imitating well-known institutions to "rub brand names" or false publicity. Article 57 of the Trademark Law stipulates that a trademark identical to its registered trademark is used on the same kind of goods without the permission of the trademark registrant; Without the permission of the trademark registrant, the use of a trademark similar to its registered trademark on the same kind of goods, or the use of a trademark identical or similar to its registered trademark on similar goods, which is likely to cause confusion, is an infringement of the exclusive right to use a registered trademark. Article 6 of the Anti-Unfair Competition Law also stipulates that business operators must not use identical or similar signs such as the name, packaging, and decoration of goods that have a certain influence on others without authorization, and carry out confusing acts, causing people to mistakenly believe that they are other people's goods or have specific connections with others.
A local market supervision bureau received a report that One Infant Care Co., Ltd. used the trademarks of other well-known early education institutions without authorization. After investigation, the words of well-known institutions can be seen on the billboards on the exterior walls of the floor where the infant and child care company is located, the signs at the door of the business premises, the lobby bar and the hanging signs on the west wall of the lobby. After verification, the infant care company admitted that the use of the brand trademark of a well-known institution was not authorized and was a fraudulent use of the trademark. The infant care company violated the mainland trademark law and the anti-unfair competition law, and the law enforcement authorities ordered it to immediately stop the infringement and imposed a fine.
Judge of Beijing Shijingshan District People's Court reminded
There are huge legal risks in "unqualified childcare", and the filing is equivalent to putting the first safety door on the childcare institution, and it is the "entry ticket" for the childcare institution to enter the industry. For business operators, they must strengthen their legal awareness and perform the filing procedures in accordance with laws and regulations before operating, otherwise once they are investigated and dealt with by law enforcement authorities, they will require rectification at best, or shut down and pay fines at worst. For parents, before choosing a childcare institution, they should check with the National Health Commission or the local competent authorities to find out whether the childcare institution has been recorded, ensure that it operates with a "license", and do not pay for counterfeit brands.
2. Beware of "pre-embedding" overlord clauses in the contract
Childcare is essentially a service provided by childcare institutions, especially when a large number of parents choose socialized childcare institutions, and the two parties mainly bind their respective rights and obligations through service contracts. Therefore, parents have legal risks such as overlord clauses and prepayment when signing contracts.
When signing a contract with a childcare institution, parents must carefully review the contract, paying particular attention to the rights and obligations of both parties as set out in the terms of the contract. Generally speaking, the two parties sign a standard contract, and according to Article 496 of the Civil Code, standard terms are terms that the parties have drawn up in advance for repeated use and have not negotiated with the other party at the time of concluding the contract. Where standard terms are used to conclude a contract, the party providing the standard terms shall follow the principle of fairness to determine the rights and obligations of both parties, and use reasonable methods to remind the other party to pay attention to clauses that have a major interest in the other party, such as exemption or mitigation of its liability, and explain the clauses in accordance with the requirements of the other party. If the party providing the standard terms fails to perform the obligation to indicate or explain, so that the other party does not pay attention to or understand the clause in which it has a major interest, the other party may claim that the clause does not become the content of the contract. Article 497 stipulates that if the party providing standard terms unreasonably exempts or reduces its liability, increases the other party's liability or restricts the other party's main rights, and the party providing the standard terms excludes the other party's main rights, the standard terms shall be invalid.
Judge of Beijing Shijingshan District People's Court reminded
When formulating a contract, childcare institutions should follow the principle of fairness to determine the rights and obligations between the two parties, and actively perform the obligation of prompting and explaining, such as using reasonable methods such as increasing fonts and underscores, prompting consumers to pay attention to the clauses exempting or mitigating their responsibilities, and explaining the clauses, and must not infringe on the rights and interests of parents and infants through various overlord clauses.
3. Advance payment is easy to cause refund disputes
In order to collect funds, many childcare institutions use various discounts to attract parents to pay more advance payments, resulting in increasing disputes over prepayment refunds for childcare services. In order to standardize the service behavior of childcare institutions, resolve disputes over prepaid refunds, and protect the legitimate rights and interests of parents, various localities have issued guidelines for the specification of infant and toddler care service contracts for children under the age of 3, such as the model text of the "Beijing Infant and Child Care Service Contract (Trial)" jointly formulated by the Beijing Municipal Health Commission and the Market Supervision Bureau, including the content of childcare services, fee terms, the rights and obligations of Party A (parents), the rights and obligations of Party B (childcare institutions), the modification and cancellation of contracts, refund clauses, liability for breach of contract, force majeure agreements, Dispute resolution, etc. Among them, the refund clause stipulates that if the parents do not enter the kindergarten within 7 days from the date of payment, the parents have the right to request to cancel the contract and refund, and the childcare institution shall refund the advance payment in full within 5 days of receiving the application. If the contract is terminated due to Party B (childcare institution) reasons, Party B shall calculate the childcare fee according to the original preferential plan, and the meal fee shall be calculated according to the actual number of days of attendance for the infant.
For example, a childcare institution was ordered by the relevant state authorities to stop operating due to lack of industry qualifications, but refused to refund the relevant fees for the remaining two months of the agreement with the client, and was sued in court. After hearing, the court held that, according to Article 563 of the Civil Code, if one of the parties delays the performance of its obligations or has other breaches of contract that make it impossible to achieve the purpose of the contract, the parties may rescind the contract; Article 566 stipulates that after the contract is terminated, if it has not been performed, the performance shall be terminated; If performance has been performed, depending on the circumstances of performance and the nature of the contract, the parties may request restitution or take other remedial measures, and have the right to claim damages. In the end, the court ruled to terminate the contract signed between the childcare institution and the client and refund the overpaid childcare fees.
Judge of Beijing Shijingshan District People's Court reminded
When enrolling their children in a childcare institution, parents should carefully review the terms of the contract, focusing on the starting time, price, and class hours of the childcare services involved, especially the payment method of the advance payment, the refund procedure, the refund process, the preferential application conditions, etc., and do not forget to ask for the contract and relevant bills as a basis after payment. In the event of a refund dispute, parents can negotiate with the merchant on their own, or seek coordination from relevant departments. If the merchant is still unwilling to refund the fee, parents can collect relevant information and evidence for litigation to protect their rights.
4. Who bears the liability after the infringement occurs
Ensuring the safety of their children in childcare institutions is the most important concern of every parent, and in recent years, the media has repeatedly reported that safety incidents have occurred in childcare institutions, which is worrying. When infringement occurs, how can parents take up legal weapons to protect their children?
The primary responsibility of childcare institutions is to provide early education and safe care services for infants and young children. If the infant suffers personal injury if the infant is not fulfilled and the duty of care is not fulfilled, the childcare institution shall bear tort liability. According to Article 20 of the Civil Code, minors under the age of eight are persons without capacity for civil conduct, and their legal representatives are to carry out civil legal acts on their behalf. Article 1199 stipulates that if a person without capacity for civil conduct suffers personal injury while studying or living in a kindergarten, school or other educational institution, the kindergarten, school or other educational institution shall bear tort liability; However, those who can prove that they have fulfilled their educational and management duties shall not bear tort liability.
As a person without capacity for civil conduct, when an infant or young child is harmed in a childcare institution, the principle of presumption of fault liability applies to the institution's liability, that is, it is presumed that the perpetrator is at fault from the fact of damage itself, and as long as the child suffers personal injury during the institution's childcare, it is presumed that the childcare institution has not fulfilled its duty of care and care, and if there is fault, it should bear tort liability. Childcare institutions may not be held liable only after proving that they have fulfilled their caregiving duties. For example, if a child was injured during childcare, the institution claimed that it was caused by a child accidentally falling while playing by himself, and when he found it, he was sent to the doctor for treatment. In this regard, if the childcare institution cannot produce evidence such as surveillance video to prove that it has fulfilled its management responsibility in this process, it should bear tort liability according to the principle of presumption of fault. Therefore, childcare institutions should be equipped with reasonable personnel and safety facilities to ensure the safety of infants and young children.
Due to the characteristics of young age, weak sense of self-protection and poor self-protection ability, infants and young children may be injured by third parties such as peers or outsiders in the childcare institution, and if the institution fails to fulfill its care duties, it shall bear corresponding supplementary responsibilities. According to Article 1201 of the Civil Code, if a person with no or limited capacity for civil conduct suffers personal injury to a third party other than a kindergarten, school or other educational institution while studying or living in a kindergarten, school or other educational institution, the third party shall bear tort liability; Where kindergartens, schools or other educational institutions fail to fulfill their management duties, they shall bear corresponding supplementary responsibilities. After the kindergarten, school or other educational institution assumes supplementary liability, it may recover compensation from a third party.
A child in one place was poked in the eye with a sharp pencil while in a childcare institution, but there was no camera at the location of the incident, and the parents had to take the childcare institution and its owner, as well as classmates suspected of committing harm and infringement. The court found that the child victim was not injured at the institution for the first time, and had previously been scratched on the forehead by a pencil, but the kindergarten did not pay attention to it. Since the suspected infringer is also a minor without civil capacity, it cannot be determined that he has indeed committed the infringement without evidence to prove that he committed the infringing act. The institution had omissions in safety education and management, and failed to fulfill its educational management duties, so the court ultimately ordered the operator of the educational institution to bear full responsibility.
Judge of Beijing Shijingshan District People's Court reminded
Since most of the objects accepted by childcare institutions are infants and young children with weak self-protection ability, institutions should pay more attention to safety management in the process of providing childcare services, effectively protect the personal safety of infants and young children, and prevent them from being subjected to infringement.
To protect children is to protect the future of the motherland, and vigorously developing childcare requires the comprehensive efforts of the whole society and all aspects. Relevant administrative departments should strengthen supervision of childcare institutions, strengthen "threshold" reviews, increase routine inspections, and promptly punish or close down unlicensed childcare establishments. Childcare institutions shall formulate detailed safety management systems, strictly implement them, allocate staff for management, childcare and care, health care, safety and security, and meet the corresponding conditions to take up their posts, such as qualified childcare worker qualifications, health certificates, and health care doctor qualifications. Parents should pay attention to check the business license of the childcare institution and whether there is a "childcare institution filing receipt". After the child enters the nursery, parents should maintain close contact with the childcare institution, and in the event of an incident that endangers the personal safety of infants and young children, they should learn to use legal weapons to protect their own interests.
Photo courtesy of Visual China
Source: Beijing Daily client Reporter: Yuan Jing
Process Editor: U060