Beijing, March 14 (Reporter Sun Ying) According to the Central Radio and Television Corporation's Voice of China "News Evening Peak" report, for a long time, easy to refund cards, difficult to protect rights and other problems in the fitness, beauty, catering, shopping and other consumption areas have been widely existing, many businesses have to apply for membership cards to enjoy a variety of preferential treatment as a reason to attract consumers to apply for membership cards, the amount of consumption is often tens of thousands.
We often hear such examples in our lives: after getting a fitness card, I didn't close the door several times; who was responsible for being injured during the workout? What is even more difficult is that if the consumer uses a pseudonym when applying for a card, what if a dispute occurs? Recently, the Fangshan District Court in Beijing reminded consumers through cases: how to consume rationally and protect their rights reasonably.
Gym infographic (CCTV)
In life, some consumers are reluctant to use their real names to get cards, Wu Jia signed a membership agreement with a yoga studio under the pseudonym of "Wu Yi", spent 6999 yuan to get a yoga annual card, due to job changes have not been opened to use. Two years later, the yoga studio ceased to operate and refused to refund Wu Jia. After Wu Jia sued, yoga studio argued that it signed a membership agreement with "Wu Yi" and had no contractual relationship with the plaintiff, Wu Jia. Zhao Qi, assistant judge of the Changyang People's Court of the Fangshan District People's Court of Beijing Municipality, analyzed: "In this case, if Wu Jia cannot provide direct evidence that he and 'Wu Yi' are the same person, they should also provide relevant evidence that meets the criteria of high certainty. For example, by confirming that the POS machine signed the purchase order, the bill is Paid by Wu Jia's bank card, and the mobile phone number registered in the membership agreement is Wu Jia's mobile phone number, etc., to prove the identity relationship between Wu Jia and 'Wu Yi', and providing these evidences requires more time and energy, which will increase the difficulty of the plaintiff's proof to a certain extent. ”
Because the existing evidence really cannot prove that Wu Jia and "Wu Yi" are the same person, Wu Jia's side withdrew the lawsuit and waited for the evidence to be collected before suing. Zhao Qi reminded consumers: "If the merchant does not specifically agree that consumers need to register real identity information, consumers can use pseudonyms or aliases when applying for membership cards, but indicate their real names in the contract, pay attention to retaining relevant consumption vouchers, and can correspond pseudonyms with real names, so as to avoid increasing the difficulty of their own evidence in subsequent disputes and affecting the right to claim." ”
Many times, merchants attract consumers with big discounts for opening stores, and Ai Dong spent more than 3200 yuan on the service fee of more than 3200 yuan to apply for a membership card when the gym opened. But a few days later, when he went to the gym several times, he found that the gym was closed. Aidon sued for rescission of the contract and refund of the corresponding service fee, which was upheld by the court. Zhao Qi said: "For consumers who apply for a sub-card, the court calculates the refund amount based on the average cost of each service received; for consumers who apply for an annual pass and other time cards, the court calculates the refund amount based on the average daily fee of their service period. ”
Some merchants do not sign any agreement with consumers after applying for the stored value of their membership cards, only issue a membership card to consumers, and even do not pay consumers any vouchers. Zhao Qi suggested: "In this case, consumers should properly retain the payment voucher, and after each consumption, they can ask the merchant for consumption records to accurately grasp the balance situation." ”
The judge reminded the merchant that the Civil Code has made new provisions for standard terms. Zhao Qi said: "If the merchant does not perform the obligation of prompting or explaining, resulting in the consumer not paying attention to or understanding the terms with which it has a major interest, the consumer can claim that the clause does not become the content of the contract." ”
In recent years, it is very popular fitness personal training, in general, personal training courses are more expensive than group classes, members choose personal training courses in the hope of receiving more professional, safe and effective fitness guidance services, consumers because of personal training and fitness venues to fight more lawsuits there is a trend. The most common is to arrange members injured according to personal training, and personal trainers send photos and short videos of members' fitness to the Network without permission, and even have complaints of sexual harassment, how should consumers protect their rights?
According to a case heard by the court, Li Shuang (pseudonym) spent 1,500 yuan on a membership card for a period of 14 months at a gym, and purchased 100 lessons of personal training courses at a cost of 23,000 yuan. During the personal training exercise, Li Shuang sued the gym after the fracture of his left foot, demanding that the agreement be terminated, the fee refund, and the payment of his lost work expenses and nutrition expenses caused by the injury totaling more than 90,000 yuan. The court reminded that contract disputes can be sued separately. On Li Shuang's injury alone, Zhao Qi, assistant judge of the Changyang People's Court of the Fangshan District People's Court of Beijing Municipality, analyzed: "Li Shuang was injured during a personal training class in the gym, and the gym arranged a professional personal trainer to be responsible for guiding the fitness, which should have a greater obligation to protect; Li Shuang, as an adult, should also fulfill his duty of care for his own safety, and other evidence and self-reports provided by both parties, Li Shuang did not show strong discomfort in the fitness process, and after the injury, he still carried out other training, and Li Shuang was negligent in his own injury. According to the investigation, it was decided that Li Shuang should bear 50% of the responsibility for his own injuries, and the gym should bear 50% of the responsibility. ”
In another case, Ms. Zhao purchased a six-month personal training course at a fitness club, and she complained to the clubhouse about the physical and verbal harassment of her by the personal trainer. After that, the fitness club was sued to terminate the contract and refund the service fee. Wang Anran, assistant judge of the Chaoyang District People's Court in Beijing, analyzed: "In this case, the court held after trial that the fitness institution failed to reasonably restrain its coach, and in the performance of the contract, the improper behavior of the fitness coach has caused trouble to Ms. Zhao, the contradiction between the two parties is difficult to reconcile, the gym has a breach of contract in the performance of the contract, and the purpose of the contract cannot be realized, so Ms. Li has the right to terminate the contract and refund the service fee." ”
Sexual harassment in the fitness process has the characteristics of concealment and immediacy, and consumers often face difficulties in obtaining evidence. Wang Anran suggested: "Once consumers find that there is sexual harassment, they should pay attention to retaining corresponding evidence, such as WeChat, QQ chat records, etc., and should also seek help in time when harassment occurs, and can protect their rights and interests through legal means such as alarms." ”
The judge suggested that consumers, including applying for fitness cards, should pay attention to scrutinizing the qualifications of merchants, perusing the contract text, and carefully retaining evidence. Wang Anran said: "Consumers should pay attention to preserving fixed evidence, consumers should provide evidence to prove the facts they claim at the litigation stage, and pay attention to the contracts, payment vouchers, class records, and WeChat SMS records of communication between the two parties, so as to prevent difficulty in presenting evidence in the event of disputes." ”