Corporate Counsel Team: Huaicheng lawyers
Edit | July
作者 | 槐城律师 郑俊灿
Jung Jun-chan
Liaoning Huaicheng Law Firm
Corporate Legal Counsel Government Legal Services
Civil Litigation Contract Disputes
As people's incomes and needs grow, vehicles have become an essential means of transportation for many families to improve their quality of life.
At present, the vehicle trade-in policy is advancing, and the number of vehicle transactions is considerable, and there are many risks that vehicle sellers need to be aware of.
1
16 days after the consumer buys the car
Informed that the vehicle is being recalled
On May 4, 2017, Jiang purchased a Kia brand KX5 car from a car sales company for RMB 162,800.
After paying the purchase price and paying the relevant fees, the vehicle is registered.
When the vehicle was registered, the staff of the DMV informed that the vehicle involved in the case might be a recalled vehicle.
Jiang thought to himself, when the car company sold it to me, it didn't say that it was a recall of the vehicle?
The registration process will continue.
On May 20 and June 11, 2017, an automobile company contacted Jiang by phone and informed him that the vehicle he purchased was recalled and asked to go to the 4S store to replace the original parts.
A few days after coming, Jiang sued a certain automobile company to the court.
Requested the automobile sales company to compensate 3 times the purchase price of 488,400.00 yuan.
After the first and second trials, neither was supported.
But Jiang came up vigorously, but he was not satisfied, and applied to the procuratorate for a protest under the advice of his lawyer.
Sure enough, this trick worked, and in the end, the court retried and ruled that the automobile company compensated Jiang for 3 times the purchase price of 488,400.00 yuan.
The dust settled.
2
Determine the composition of the operator's trading behavior
The timing of the fraud
The court held that whether there was fraud in the sale of the vehicles involved in the case by an automobile company was mainly based on Article 68 of the Opinions of the Supreme People's Court on Several Issues Concerning the Implementation of the General Principles of the Civil Law (hereinafter referred to as the "Mintong Opinions").
Article 68 of the Opinions stipulates that:
Where one party intentionally informs the other party of false circumstances, or deliberately conceals the true situation, inducing the other party to make a false expression of intent, it may be found to be fraudulent.
At the same time, in accordance with Article 17 of the Defective Vehicle Recall Regulations:
When an automobile manufacturer decides to recall some vehicles, it shall notify the seller of the recall plan reported to the product quality supervision department of the State Council for the record, and the seller shall stop selling the defective automobile product.
As the seller of the vehicle involved in the case, an automobile sales company knew or should have known that the vehicle involved in the case belonged to the recalled vehicle in the recall notice issued by Dongfeng Yueda Kia Automobile Co., Ltd. on October 13, 2016 at the Defective Product Management Center of the State Administration for Market Regulation, but still sold the vehicle involved in the case to Jiang, which was a deliberate concealment of the true situation and constituted civil fraud.
In this case, although an automobile sales company argued that its company contacted Jiang by phone twice after the sale of the vehicle and informed Jiang that the vehicle he purchased had recall information, it did not constitute fraud.
However, in accordance with the principles of civil law and legal provisions, the judgment on whether a business operator's transaction behavior constitutes fraud shall be based on the conduct at the time of the transaction.
After the transaction is completed, if the business operator discloses the product quality defect to the consumer, the fact of fraud that has already existed cannot be denied on this basis.
In summary, Jiang's claim that an automobile company constituted fraud was established.
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According to Article 55 of the Law on the Protection of Consumer Rights and Interests, "if a business operator commits fraud in providing goods or services, it shall, at the request of the consumer, increase the compensation for the losses suffered, and the amount of the increased compensation shall be three times the price of the goods purchased by the consumer or the cost of the service received by the consumer".
The sales behavior of an automobile sales company in concealing the defects of the vehicle involved in the case constituted fraud, and Jiang should be compensated three times the purchase price of the car.
That is, it was sold for 162,800 yuan, and it lost 488,400.00 yuan.
3
Huaicheng lawyer suggested
Based on the practical experience of representing consumer disputes, Huaicheng lawyers provide the following suggestions for your reference:
1. As a seller of goods, it is recommended that when selecting the goods to be sold, strictly check the basic information of the goods according to the attributes of the goods, and collect the latest information of the goods, so as to avoid selling defective and unqualified goods as much as possible.
2. As a seller of goods, it is recommended that when the sold goods are confirmed to be defective, the consumers who purchased the goods should be notified as much as possible, and relevant measures such as repossession and return should be taken to avoid further expansion of losses due to product quality problems.
3. As a consumer, it is recommended that after knowing that the goods are defective, further study and judge whether to take return and refund measures, or require the merchant to bear punitive damages, and then carry out the next step of rights protection, which will help protect their own rights.
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Applicable Law:
Law of the People's Republic of China on the Protection of Consumer Rights and Interests
Article 55: Where proprietors commit fraud in providing goods or services, they shall, at the request of consumers, increase compensation for the losses suffered, and the amount of increased compensation is three times the price of the goods purchased by the consumers or the cost of the services they received, and where the amount of increased compensation is less than 500 RMB, it is 500 RMB. Where the law provides otherwise, follow those provisions.
Where proprietors clearly know that the goods or services are defective, but still provide them to consumers, causing death or serious harm to the health of consumers or other victims, the victims have the right to demand that the proprietors compensate for losses in accordance with articles 49, 51 and other legal provisions of this Law, and have the right to demand punitive damages of up to twice the losses suffered.
Case Source:
Heilongjiang Provincial High People's Court, Jiang v. an automobile company, a dispute over a sales contract, (2021) Hei Min Zai No. 14 Civil Judgment.
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