Shulou(Shulou.com)11/24 Report--

CTOnews.com October 11 news, the Chinese Consumer Association today posted on the official website, the Chinese Consumer Association invited lawyers of the Chinese Consumer Association to comment on the unfair format terms in the field of communications.

The details are as follows:

First, failure to inform consumers of the true situation of the service, infringing upon consumers' right to know. For example, the nominal value of the uplink and downlink rate of the data service handled by Party A (consumer) is only the theoretical maximum of the uplink and downlink rate provided by Party B (communication company), and Party B cannot guarantee that it can reach the nominal value under any circumstances. Party An is aware of and agrees with this.

Comments:

(1) legal analysis

Consumers have the right to know the truth about the goods they purchase or use or the services they receive. Communication companies, as professional service providers, know more about the business than ordinary consumers, and have clear standards for data services. As long as the data rate is not "0", it does not belong to the transmission without data. When ordinary consumers receive services, they have the general perception that if the data rate does not meet the basic requirements of use, it cannot be used, commonly known as "connecting to the Internet or not". Communications companies should inform consumers of the rate at which minimum requirements are met, rather than prevaricate consumers with "data transmission" when they feel they cannot use it.

(2) legal basis

Law on the Protection of Consumer Rights and interests

Article 8 consumers shall have the right to know the true situation of the commodities they purchase or use or the services they receive.

Consumers have the right to, according to the different circumstances of the goods or services, business operators are required to provide relevant information about the price, origin, producer, use, performance, specification, grade, main ingredients, date of production, validity period, inspection certificate, instructions for use, after-sales service, or the content, specification and cost of the service.

Second, the rights and obligations of the operators in the standard contract terms are not equal, and the terms for consumers to give up their rights are drawn up in advance to exempt themselves from liability. For example, unless otherwise stipulated in this Agreement, if one party violates this Agreement and causes losses to the other party, it shall be liable for compensation in accordance with the law, among which the liability of Party B (operator) shall be limited to the fees actually received by Party B from Party A (consumers). It does not include the unrealized expected profits or benefits of Party A, the loss of commercial reputation, the lost data itself and the loss caused by the loss of data, Party A's liability to the third party and other indirect losses.

Comments:

(1) legal analysis

As the party providing the standard contract, the operator shall follow the principle of fairness and determine the rights and obligations between the parties. In this example, the rights and obligations of the format contract provided by the operator are not equal, which aggravates the responsibility of consumers, and even excludes or deprives consumers of their right to compensation. Through the standard terms, operators draw up the terms for consumers to give up their rights in advance, so as to exempt themselves from responsibility. for example, in this example, consumers are required not to claim unrealized expected profits or benefits, lost data itself and losses caused by data loss, which obviously limits consumers' right to claim and reduces the operator's liability for compensation.

(2) legal basis

Civil Code

Article 584 if one party fails to perform its contractual obligations or fails to comply with the agreement, thus causing losses to the other party, the amount of compensation for the losses shall be equal to the losses caused by the breach of contract, including the benefits that may be gained after the performance of the contract; however, it shall not exceed the possible losses caused by the breach of contract foreseen or should be foreseen by the defaulting party at the time of concluding the contract.

Article 496, paragraph 2

Where a contract is concluded with standard terms, the party providing the standard terms shall, in accordance with the principle of fairness, determine the rights and obligations between the parties, and adopt a reasonable way to remind the other party to pay attention to the terms such as exemption or reduction of responsibilities that have a major interest with the other party, and explain the terms in accordance with the requirements of the other party. If the party providing the standard clause fails to perform the obligation of prompt or explanation, so that the other party fails to pay attention to or understand the clause that has a significant interest with it, the other party may claim that the clause does not become the content of the contract.

Article 497 the standard clause shall be invalid under any of the following circumstances:

(1) having the invalidity provided for in Section III of Chapter VI of part I of this Law and Article 506 of this Law

(2) the party providing the standard terms unreasonably exempts or mitigates its responsibility, increases the liability of the other party, and restricts the main rights of the other party.

(3) to provide standard terms for one party to exclude the other party's main rights.

Law on the Protection of Consumer Rights and interests

Article 26, paragraphs 2 and 3

Business operators shall not make provisions that are unfair and unreasonable to consumers by means of standard terms, notices, statements, store notices, etc., such as excluding or restricting consumers' rights, reducing or exempting operators' responsibilities, increasing consumers' responsibilities, etc., shall not make use of standard terms and use technical means to force transactions.

If the standard terms, notices, statements, store notices, etc., contain the contents listed in the preceding paragraph, their contents shall be invalid.

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