The following will be discussed from the "analysis of the legal provisions on the refund of fees by training institutions" and "three progressive ways to protect rights by refunding fees".
I. Legal analysis
1. If the study plan cannot be completed due to school reasons, and the students request to drop out of school and refund the fees, the school shall refund the remaining fees.
2. Before the start of school, if students apply to the school for withdrawal or refund of fees due to irresistible reasons, such as the formal admission notice or enlistment notice issued by various national institutions that recognize academic qualifications, or due to serious diseases, unexpected casualties, special family difficulties and other legitimate reasons, the school will deduct 5% of the handling fee and refund the remaining fees.
3. Be sure to read the contents of the agreement before signing, and advise consumers to keep evidence of rights protection. There is a refund in the agreement. Generally, the agreement between the consumer and the merchant shall prevail (except for invalid format clauses).
On the issue of liquidated damages, the Civil Code (implemented from 2002 1,1) stipulates that "the parties may agree that one party shall pay a certain amount of liquidated damages to the other party according to the situation of breach of contract, and may also agree on the calculation method of compensation for losses caused by breach of contract. If the agreed liquidated damages are lower than the losses caused, the parties may request the people's court or arbitration institution to increase them; If the agreed liquidated damages are excessively higher than the losses caused, the parties may request the people's court or arbitration institution to reduce them appropriately. " Generally speaking, the upper limit of the contract penalty is not more than 30% of the actual loss. When consumers say that they have not reserved courses or cancelled courses, it is recommended to keep relevant evidence, such as written materials, recordings, text messages, emails, online chat records, etc. When communicating with merchants. If litigation is involved in the future, from the perspective of evidence, according to the rule of "who advocates, who gives evidence", it is necessary to provide relevant evidence in legal proceedings.
4. Students who are unable to continue their classes due to personal violation of national laws and regulations during school will not be refunded.
5. Schools shall collect fees according to the charging items and standards approved by the administrative department of education and other relevant departments, and use special bills uniformly printed by relevant departments. This bill serves as the only proof of tuition and refund.
We don't discuss the suspension of training and learning caused by irresistible factors, such as joining the army or personal accidents. We mainly discuss the first and third laws and their corresponding situations, which are also the two most common situations at present.
The first type: if the school cannot provide training services for students, it shall refund the remaining fees.
If the teaching activities are forced to be interrupted due to the outbreak of COVID-19 epidemic and the implementation of some special policies, consumers can apply to the trainer for a refund, and the trainer should refund all or part of the fees according to the contract (depending on the number or time of training courses).
The second type: unilaterally decide to terminate the agreement contract for personal reasons.
According to the provisions of China's Civil Code, the legal right to terminate a contract only includes four situations: force majeure, the other party's express breach of contract, delayed performance and substantive breach of contract.
It does not include the above situation, so you can't claim a refund with the legal right to terminate the contract. Refund can only be done according to the contract, and the treatment method should be similar to the first one. However, due to the unilateral contact contract, a certain amount of liquidated damages (not exceeding 30% of the actual loss) shall be paid to the other party.
The signed contract should and must contain "conditions for allowing the refund of fees", otherwise it will be deemed invalid and the lawsuit will surely win.
Second, the way of safeguarding rights
The way of safeguarding rights can be summarized as three points: negotiation is the first choice, followed by complaints and lawsuits as protection. Preparations should be made before the negotiation, including the preparation of evidence materials and the reasons for refund.
Material preparation should include signed training contracts, payment vouchers, receipts and invoices, including publicity materials (online or paper) of the organization, and collect materials that can prove that the organization does charge fees.
The reason preparation should include the reason for the refund, the contents of the agreement signed by both parties, advantages and disadvantages, the specific training situation, and the estimated refund amount.
1. Negotiation
Discuss the issue of fee refund through direct communication with teachers, institutional trainers and institutional leaders. We should clearly express our intentions and reasons, provide evidence, laws and treaties, reason, argue and solve them as soon as possible. Don't waver, lengthen the front.
If the organization itself has problems such as false propaganda, running schools without a license, collecting money from private accounts, not issuing invoices, and incomplete training facilities, it is necessary to seize this pain point and crack down.
complain
Mainly for the specific violations of laws and regulations of training institutions, report to the relevant administrative authorities and ask for treatment. Call 12345 government service hotline and 123 15 consumer complaint hotline to report complaints.
The effect of complaints varies from place to place and from person to person. Many institutions may push you out, asking you or suggesting that you go to other institutions or go to court to file a civil lawsuit. So, don't expect too much from complaining.
In the process of complaint, in addition to waiting for the result, you can also inform the trainer of the complaint process to exert pressure.
1) Education and training contract, the educatee or participant belongs to the consumer, so all related questions can be complained to the consumer association.
2) Refuse to refund the fee, and directly report to the Education Bureau (generally, it will be handled if you get the school license; If an educational institution has not obtained a school license, the Education Bureau can ignore it and consider the Industrial and Commercial Bureau)
3) False propaganda generally falls within the authority of the industrial and commercial department (Market Supervision Administration).
4) Running a school without a license, general educational institutions are managed by the Education Bureau, vocational education, and may also be managed by the human resources and social security departments.
5) Non-invoicing, private account collection and tax evasion are managed by the local taxation bureau.
3. Litigation
Litigation is to bring a lawsuit to the people's court. This method is the most effective and feasible, but the time cost and economic cost are high.
Under normal circumstances, institutions will refund fees before civil litigation, because prosecution has a great impact on institutions. If the institution has been unwilling to refund the fee, it is ok to sue directly.
Litigation related
1. file a lawsuit.
You can ask a lawyer to complete the lawsuit, or you can submit the complaint yourself according to the template.
2. expenses
The cost is not expensive. The refund amount is RMB 6,543,800.00 Yuan, and the court case acceptance fee is 50 yuan.
3. Proceedings
1) Prosecution: Submit a complaint to a court with jurisdiction.
2) Record review
3) After the prosecution is accepted, the court will send a copy of the complaint to the other party within 5 days;
4) Arrange the court session time;
5) hearing;
6) reach a mediation agreement. Make a conciliation statement, which will take effect after being signed by both parties.
When the parties perform the contents of the mediation agreement or apply for execution, they apply to the court for retrial. If no mediation agreement is reached, the collegial panel will make a judgment (ruling): if the judgment is agreed, the parties will automatically perform the obligations stated in the judgment document or apply to our hospital for compulsory execution. Those who refuse to accept the judgment shall appeal to the people's court at a higher level within 10 days from the date when the ruling is served, and appeal to the people's court at a higher level within 15 days from the date when the judgment is served.
Part of this article comes from the Internet and lawyer Zhihu Shane.
Published before June, the copyright belongs to the author.
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