Recently, a video of ‘The female owner of Mercedes-Benz cries out for rights protection’ sparked some controversy on the Internet. It is reported that on March 22, a woman wanted to buy a Mercedes-Benz worth 660,000 yuan as her own birthday gift, but the oil leak of the engine was discoverd before she drived the car out of the 4S dealership. The solution put forward by the dealership from refund and replacement to changing a engine freely. The female owner finally broke out and sat on the bonnet of the Mercedes-Benz crying for rights protection, which was made into a video by netizens and uploaded to the Internet. On April 16, the two sides finally reached an settlement agreement for changing a new car and compensation and so on.
In the video, the female owner mentioned two problems: the oil leak of the engine and being charged for financial services. So how could we understand it? In short, the product generally exists in physical form, such as the engine in this case; a service that satisfies a particular need of another person is not in the form of physical goods but in the form of labor, such as financial services in this case.
By the way,‘financial service fees’ in the auto industry will be popularized: this fee actually refers to the handling cost when helping consumers to make mortgage loans -- helping consumers to arrange the institutions specializing in mortgage loans to pay for their cars. Various services will be involved in this process, such as helping consumers to take photos of the material and report consumer information to the lending institutions. The fee is set by each 4S dealership at its own discretion, usually 4% of the loan amount. Without informing the female owner in advance, 4S dealership charged the financial service fees for the female owner with private account and did not write a receipt, which may be involved tax evasion and fraud.
When a contract dispute arises between a consumer and a business runner, the contract law and the law on the protection of the rights and interests of consumers are the most commonly applicable. Are there other laws that apply when it comes to products and services?
The law stipulating product problem is product quality law, and warranty services of repair, replacement and refund of specific commodity apply different regulations. For example, the TV problem is stipulated by the regulation stipulating the responsibilities on repair, replacement and refund of partial commodity, and the car problems in this case apply the regulation stipulating the responsibilities on repair, replacement and refund of private cars manufactured and sold in China.
According to the different content of service, service contract can be classified into several categories. Different service contracts are also governed by different laws and regulations, such as consulting contract about real estate: urban real estate management law, broker management measures, etc. Travel contract: regulations on travel agencies, etc.; Medical service contract: the tort liability law has a special chapter ‘medical injury liability’ to stipulate medical tort liability. Catering service contract: food safety law, food safety supervision and management measures for catering service, etc.
Next let us review the issues involved in this case according to the foregoing law.
The principal of 4S dealership once said, ‘according to the regulations about warranty services of repair, replacement and refund, you can only get a new engine, but because we sympathize with you, we agree to give you a refund’. The paragraph 2, article 18 of the regulation stipulating the responsibilities on repair, replacement and refund of private cars manufactured and sold in China, stipulates that within 60 days as of the seller wrting a receipt; or the gauge of 3000 km (which ever comes first), if the main parts of engine or transmission have quality problems, consumers can choose a free replacement of engine and transmission.
The pointed response of the female owner has been well received by netizens. Article 19 stipulates that during the warranty period of household automobile products, if the time for each repair (including waiting for repair spare parts) exceeds 5 days due to product quality problems, spare cars shall be provided to consumers, or reasonable transportation expenses shall be compensated. However, the 4S dealership failed to solve the problem of the vehicles sold, nor did it provide the female owner with a spare car.
As for the issue of triple compensation, article 55 of the law on the protection of the rights and interests of consumers stipulates that, if the business runner commits fraud in providing commodities or services, he/she shall, at the request of consumer, increase the compensation for the losses that the consumer has suffered. If the amount of the increased compensation is less than 500 yuan, it shall be 500 yuan. Otherwise provided for in any law, the latter shall prevail. Therefore, if it can be proved that the 4S dealership constitutes fraud, the car owner can ask for triple compensation, that is, ‘refund and compensate three times the price of the car’. A similar case, ‘the second trial civil judgement about the sales contract dispute between Hangzhou Zhongshengzhixing automobile sales and service co., LTD., and Wang Yajun’ can be searched on the Chinese referee document net, and the case number is (2017) Zhejiang 01 Min Zhong 8765. In this case, the court ruled that the Benz 4S dealership that replaced the tire without authorization constituted sales fraud, and refunded and compensated the consumer three times the price of the car.
So what can we do to avoid the situation that buy a car happily while repair the car sadly?
As the old saying goes, nip something in the bud. Before signing the sales contract, consumers should carefully review the terms of the contract, such as the time to pick up the car, the liability for breach of contract caused by picking up the car exceeding the time limit, the price adjustment caused by the manufacturer’s adjustment of the product or configuration after delivering front money and before picking up the car, and whether the official seal used by the 4S dealership is indeed the official seal of this company. Combined with this case, consumers should pay attention to whether there is a similar clause in the contract, ‘after consumers drive out of the 4S dealership, 4S dealership is not be responsible for all the problems’. Although there are now warranty services of repair, replacement and refund that can protect the legitimate rights and interests of consumers, this clause is adverse to consumers after all so we’d better avoid this. Finally, pay attention to whether there are some puzzling fees such as ‘financial service fee’, so as not to be the same as the female owner who found something strange after another fee had been delivered and had to pay the financial service fees.
Of course, if disputes arise, consumers should pay attention to the retention of evidence, such as the original contract, transfer records, records of communication with the 4S dealership, etc.
