This article was written by lawyer Bao Longqing
This article was first published on 2021-12-10 on the WeChat public account.
About author:Bao Longqing, a native of Gansu Province, Han nationality, graduated from Xinjiang University, a member of the All China Lawyers Association, and is now a full-time lawyer at Xinjiang Xiangrui Law Firm. Mr. Bao Longqing attaches great importance to the combination of legal theory and judicial practice, and has a profound foundation in legal theory and rich practical experience, and his main practice areas include labor dispute resolution, marriage and family disputes, company-related disputes, contract disputes, tort and other civil and commercial disputes, as well as criminal cases.
In order to repay the society, lawyer Bao Longqing provides litigation services for two Gansu migrant workers in Xinjiang twice a year free of charge, and contacts friends in need.
Vehicle sales contract disputes are a very common civil dispute, especially in the second-hand car sales disputes, this article takes two practical cases as an introduction, briefly tells you what kind of behavior can constitute fraud in vehicle sales contract disputes, that is, under what circumstances the party who buys the car can claim a refund to the court and get the court's support.
01 Elements of fraud
To analyze what constitutes fraud, we need to understand how the term "fraud" is defined in law.
Paragraph 1 of Article 55 of the Law of the People's Republic of China on the Protection of Consumer Rights and Interests: "Where a business operator commits fraud in providing goods or services, it shall, at the request of the consumer, increase the losses suffered, and increase the amount of compensation to three times the price of the goods purchased by the consumer or the cost of the service received by the consumer; if the amount of the increased compensation is less than $500, $500."
This law does not provide a clear and specific definition of what constitutes merchant fraud, but directly stipulates how to compensate merchants in the nature of punitive.
However, we can infer the determination of fraud from the following two legal provisions.
Article 148 of the Civil Code stipulates that if one party fraudulently causes the other party to carry out a civil juristic act contrary to its true intentions, the defrauded party has the right to request the people's court or arbitration institution to revoke it.
Article 68 of the Opinions of the Supreme People's Court on <中华人民共和国民法通则>Several Issues Concerning the Implementation of the Civil Code (Provisional) (repealed) stipulates that if a party intentionally informs the other party of false information, or deliberately conceals the true situation, and induces the other party to make a false expression of intent, it may be found to be fraudulent.
In other words, the following four elements must be met at the same time to constitute fraud:
The first is that the fraudster has the intent to defraud.
The second is that there is fraud, deliberately informing the other party of false information, or deliberately concealing the true situation.
The third is that the defrauded person has fallen into a misconception due to the fraudulent act.
Fourth, the defrauded person made a wrong expression of intent because of the misunderstanding.
I know you don't bother to read the dry legal text, the following case, the court decided
The merchant constitutes fraud and refunds one to three to the consumer, let's take a look.
02 Fraud
This is an order of the Shijiazhuang Intermediate People's Court in Hebei Province, Bao Tai Tai bought a second-hand BMW car from Company A for 395,000 yuan, and Company A did not inform the vehicle that it was a water accident car when purchasing the car, and it was not until Bao Tai Tai learned that he had bought a water accident car after a traffic accident, so he sued Company A to the court.
After the first and second instance of the case, the court of first instance ruled that Company A should refund one and compensate three, and after Company A appealed, the court of second instance rejected the appeal and upheld the original judgment.
In the end, Bao Taitai won the lawsuit and received 1.185 million yuan in damages.
03 Fraud
This is a judgment of the Urumqi Intermediate People's Court.
Li Taimei bought a brand-new Mercedes-Benz ML400 from Company B at a price of 770,000 yuan.
Two months later, when Li Taimei went through the settlement procedures, she learned that the windshield of the car had been replaced and the hood had been painted twice, and she believed that Company B had not informed her of the fact that the vehicle had been scratched, so she sued the court and demanded that Company B refund one and pay three.
During the court proceedings, Company C (from which Company B purchased the car) admitted that the car had indeed suffered minor scratches during transportation, and that the windshield and hood had been replaced.
The court of first instance ruled to terminate the vehicle sales contract between Li Taimei and Company B, return the car and refund the money, and rejected Li Taimei's request for a refund of one and three compensations.
Both parties appealed, and the court of second instance rejected the appeal and upheld the original judgment.
04 Summary
In the first of the above two cases, the court upheld the consumer's claim for a refund of one and compensation for three.
In the second case, the court did not support the consumer's claim for a refund of one and three compensations.
In both cases, the merchant concealed the true condition of the vehicle, and both met the four constituent elements of fraud, so why was one supported and the other not?
In the first case, the court wrote in its judgment that Company A should have informed Bao Taitai of all the circumstances of the vehicle when purchasing the car, but Company A did not inform the fact that the vehicle was a vehicle involved in a water accident, and this fact was sufficient to affect or change the expression of intention of Bao Taitai to purchase the vehicle.
What do you mean?
That is to say, if the merchant clearly tells him that the bag is too big, the vehicle he wants to buy is a wading accident car, and there is a high probability that the bag is too big and will not buy the car.
In the second case, the court wrote in the judgment that although Company B had failed to inform Li Taimei of the defective vehicle, from the analysis of the constitutive elements of the fraudulent act, firstly, Company B's concealment of defects was not malicious fraud compared with actively fabricating facts and deliberately inducing; Secondly, from the perspective of objective convenience, the defects of the vehicle at issue in this case were appearance problems, which did not involve major components and did not affect the safe use, so it would be too heavy to use the form of liability for one refund and three compensation for the circumstances of this case.
What do you mean?
In other words, the replacement of the windshield and hood paint is only a minor cosmetic defect, which is not enough to affect the vehicle's functionality and driving safety.
Refund one and pay three, that is, in addition to returning the money you spent, you have to make three times the compensation.
This is a punitive law made by the legislator specifically to sellers in a strong position, so the court will definitely be very cautious in applying this legal provision, if there is a mistake, it will cause great losses to the merchant, although it protects consumers, but it is not conducive to the development of business, and it is unfair to sellers.
The dignity and fairness of the law is reflected in the indifference between one and the other, and the law of justice will only make the winner win the case.
05 Lawyer Bao Longqing reminds
Now we know that only in terms of disputes over vehicle sales contracts, if the merchant conceals the general and minor appearance defects of the vehicle, or that the merchant only carries out partial fraud, such as scratches in the second case, or minor defects in the audio, cracked interiors, etc., as long as it does not affect the overall use function and safety of the vehicle, then the court will not find that the merchant constitutes fraud.
If the merchant conceals the overall main function of the vehicle, or the concealed content will affect the safety of the occupants of the vehicle, the court will generally consider that the merchant has committed fraud and support the refund of one and the compensation of three.
disclaimer
All contents of this Official Account are for reference only and do not represent the specific legal opinions, suggestions or decision-making basis issued by this Official Account. If you need legal advice or other professional analysis, please contact Mr. Bao Longqing at 17699054586.
Author's other number
Official account: Fa Mo (publishes law-related articles); Bao Longqing (Publishing articles outside the law)
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