Recently, according to Weibo @ Xi Anren 1, Xi 'an local education and training brand Wireless Star refused to refund the fees to parents and defaulted on teachers' salaries.
In fact, there are different ways and means to face different types of off-campus training institutions. It is the best way to safeguard one's own rights and interests after the accident to find out the routine of teaching and training institutions and master the methods of legal rights protection.
1
What is off-campus training?
In the policy document, the scope of application of the concept of "off-campus training" is strictly defined.
In the Notice on Further Defining the Scope of Off-campus Training in Compulsory Education issued by the Ministry of Education in 20021,foreign languages and other contents are called disciplines according to the national curriculum standards, while sports, art and comprehensive practice are called non-disciplines, collectively referred to as off-campus training, which is supervised by the education department.
But in reality, off-campus training is often simply understood as "children study outside school". Therefore, emerging services such as "early education", study tours and Chinese studies classes will also be regarded as off-campus training by parents. This is obviously an abuse of the concept. Take "early education" for example. In 20 19, the State Council re-standardized the wrong name as "child care service for infants under 3 years old" (hereinafter referred to as "child care"). This is not just a name change, but actually a huge difference in essence.
In the market behavior, parents and institutions regard "early education" as an educational stage and method. It refers to the promotion of children's development in language, cognition and emotion by instilling knowledge and artistic training, so as to meet the desire of "winning at the starting line"
In policy documents, "care" should be based on conservation, supplemented by education. In other words, after obtaining market access permission, these institutions mainly provide half-day or full-day custody services for parents. As long as these institutions pay attention to their own health and safety and ensure that their children will not get sick, they have completed their tasks. The target subject of supplementary education is not children but parents, and institutions provide parents with simple services such as parenting guidance and parent-child classes.
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Therefore, parents and policies have different understandings of care: one side thinks it is "educational behavior" and the other side thinks it is "health care". It is also the cognitive differences that affect parents' subsequent rights protection actions.
Whenever "early education" institutions run away, parents always think of the education department first and ask them to protect their losses. However, in the policy, an institution that provides "foster care" services can only open its doors if it is registered with the market supervision department and then filed with the health department-education does not participate in the approval process at all.
Others, such as "early education", are also in a "gray zone", with concepts such as study tour, Chinese studies class and overseas education that are difficult to define. The business scope is often "educational consultation", which belongs to information service companies.
2
What is prepaid consumption?
Whether it is "early education" or off-campus training, prepaid consumption is the norm.
Compared with the simple business model of "early education", off-campus training not only takes a long time from primary school to high school, but also involves two major disciplines, namely, language, mathematics and English, and two non-major disciplines, namely, art and physical education, so it is often the hardest hit area of "absconding with money".
In the Opinions of General Office of the State Council on Standardizing the Development of Off-campus Training Institutions, we can see that off-campus training institutions have always had strict examination and approval procedures and clear supervision and management. In other words, if a new off-campus training institution wants to start business, it must first obtain a school license issued by the local education department before it can register with the local market supervision department or the civil affairs department. And in daily operation, education and supervision departments should work together: one is responsible for the audit of teaching content and teacher quality, and the other is responsible for the management of audit registration and fee publicity.
However, the "prepaid consumption" of off-campus training institutions still exploited the loophole of supervision-the education department could not intervene in its fund management, and the market supervision could not deeply understand its teaching situation. During the barbaric growth of the industry, off-campus training institutions often require parents to pay tuition fees for half a year or more in advance, so as to promote marketing, expand the scale, and then collect more advance payment. Once the capital chain is broken, not only is daily teaching unsustainable, but it is almost impossible for parents to get their tuition back.
Although as early as 20 18, the State Council's Opinions on Standardizing the Development of Off-campus Training Institutions stipulated that teaching and training institutions should not charge more than 3 months (or less than 60 class hours) in an attempt to control the increasingly crazy pre-charging behavior. However, this policy has not attracted the attention of parents, and institutions continue to charge fees illegally in other names such as "sending classes" and "discounting".
This is also the case. After the introduction of the "double drop" policy with more detailed policies, local regulatory authorities began to pay attention to the increasingly chaotic prepaid system.
For example, on June 27th, 65438 10, the Education Bureau of Xi issued the Interim Measures for the Management of Tuition Funds of Off-campus Training Institutions in Xi (Draft for Comment). In the future, the education department will cooperate with the financial department to supervise the advance payment of off-campus training institutions, and supervise the full amount of funds to enter the special account for tuition fees to ensure earmarking. Moreover, after parents ask for a refund, they can also get the corresponding funds smoothly.
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three
After the organization runs away, how to legally defend rights?
Whenever there is a problem with off-campus training institutions, parents who sign up are often more anxious than anyone else. Making trouble is not the best policy, and you don't have to suffer from it. When an accident happens, we must first figure out a question: how can I protect my rights reasonably and legally?
As long as the contract is signed, parents and off-campus training institutions are bound by a service contract relationship. Parents spend money to buy remedial services for their children, and off-campus training institutions provide corresponding services as required until the service ends and the contractual relationship is automatically terminated.
Once the contract can't be continued due to reasons such as "running away", parents, as consumers, can safeguard their own interests through the Consumer Protection Law. According to the provisions of Article 39, disputes over consumers' rights and interests between consumers and business operators can be resolved through the following channels:
(a) negotiated settlement with the operator;
(2) Requesting consumers' associations or other mediation organizations established according to law to mediate;
(three) to complain to the relevant administrative departments;
(four) according to the arbitration agreement reached with the operator, submit it to an arbitration institution for arbitration;
(5) bring a lawsuit to the people's court.
This is the solution provided by law, and it is also the most efficient solution within the legal and reasonable scope. These parts have related requirements and precautions, which we will explain in detail here:
(a) negotiated with the operator.
At the beginning of rights protection, parents need to save relevant important evidence first.
The contract is the key. It can not only prove the contractual relationship between the two parties, but also show the rights and obligations of both parties. Many parents are not legal professionals when signing agreements with off-campus training institutions, so it is difficult to pay attention to the details in the contracts. Most of the contracts drawn up by these institutions are also tricky, such as "refund of fees requires payment of liquidated damages" and "the right to interpret belongs to the company", which seriously infringes on parents' rights and interests. Therefore, when signing a contract, we should try our best to choose a standardized contract, preferably the "Off-campus Training Service Contract for Primary and Secondary School Students (Model Text)" (202 1 Revised Edition) jointly issued by the Ministry of Education and the General Administration of Market Supervision. Standardized contracts properly define the content quality, guarantee conditions and risk distribution of off-campus training institutions, which can better protect the rights and interests of both parties in the epidemic risk and the "running tide" of institutions.
Payment voucher is also the key. Many parents ran away before signing the contract. What shall we do? In fact, even if there is no formal written agreement, the payment and payment voucher of both parties are the key to prove the contractual relationship between the two parties. In addition, the records of class hours consumed, and the vouchers for communicating with the person in charge of the institution or the teacher (such as WeChat records, telephone recording, etc.). ), as long as it can prove that the off-campus training institution failed to fulfill its contractual obligations, it is crucial evidence to solve the dispute.
After an accident, parents should sort out and back up important evidence as soon as possible, and try to communicate with the person in charge of the off-campus training institution for solutions. Because reconciliation is relatively the least cost of safeguarding rights, it is also relatively time-saving and labor-saving. However, in the absence of communication or departure, parents can only seek the intervention of relevant departments.
(two) request the consumer association or other mediation organizations established according to law to mediate.
As another commodity form, off-campus training service also belongs to the jurisdiction of consumer associations. Parents can call 123 15 to complain to the local consumer association. After accepting complaints and investigating incidents, Consumers Association will help parents mediate. However, as a social organization, consumer associations have no power of administrative punishment, and it is difficult to achieve the expected results in the face of complex cases.
It should also be clear here that in contract disputes, the object of rights protection will always be off-campus training institutions. Neither social organizations such as consumer associations, nor administrative organs such as market supervision and education departments are the objects of parents' rights protection. After receiving the complaint, after these departments confirm the facts, social organizations can adjust the contradictions between the two sides, and administrative organs can impose penalties and urge off-campus training institutions to "refund money", but they cannot "refund money" to their parents.
In addition, although Article 43 of the Law on the Protection of Consumers' Rights and Interests stipulates that "if consumers buy goods or receive services at trade fairs or rental counters and their legitimate rights and interests are damaged, they may claim compensation from sellers or service providers. After the end of the fair or the expiration of the counter lease, you can also claim compensation from the fair organizer and the counter lessor. " However, in actual judicial practice, if parents do not directly sign a contract with the landlord \ shopping mall of the leased site, then there is no direct contractual relationship between the two parties, and the landlord \ shopping mall has no obligation to "refund the money". Therefore, in safeguarding rights, the most important thing is to find the right object and avoid exerting strength everywhere, but this is not enough.
(three) to complain to the relevant administrative departments
Whether it is an "early education" institution or an off-campus training institution, parents can complain to the market supervision department. As the executive department of the Consumer Protection Law, the market supervision department has the obligation to seriously accept consumers' complaints and reports, protect their normal consumer rights and interests, and issue consumer warning tips and prepaid consumer risk tips.
According to Article 6 of the Measures for the Supervision and Handling of Contract Violations, if a party forges a contract, publishes false information to induce the conclusion of a contract, fails to perform the ability to induce the other party to conclude a contract, or fabricates false reasons to terminate the contract, the market supervision department may give a warning according to the circumstances and impose a fine of less than three times the illegal income but not more than 30,000 yuan, and if there is no illegal income, impose a fine of less than 10,000 yuan. After receiving a complaint and investigating it clearly, the market supervision department will first try to contact the person in charge of the off-campus training institution for mediation. If the mediation fails, it will be listed in the business exception list as a warning and given corresponding administrative punishment.
Parents can complain to the education department whether the off-campus training institutions with teaching qualifications run away. According to Article 62 of the Law on the Promotion of Private Education, if an off-campus training institution maliciously terminates running a school, withdraws funds or misappropriates funds for running a school, the education department may ask it to make rectification after verification, and if the circumstances are serious, it shall be ordered to stop enrolling students until the school license is revoked. If it is operating without a license, the education department can also punish it for publishing false enrollment brochures or advertisements, forging school licenses and other illegal acts. Other services such as "early education" and trusteeship are not under the jurisdiction of the education department, so it is difficult to safeguard rights.
In the face of "card issuing" off-campus training institutions, parents can also complain to the business department. Because according to the Measures for the Administration of Single-Use Commercial Prepaid Cards, training institutions need to report to the local commercial department and pass the examination and approval when issuing course entity cards to students. If there is no record, or the service cannot be provided before the expiration, the commercial department may also impose administrative penalties on it.
(four) according to the arbitration agreement reached with the operator, submitted to an arbitration institution for arbitration.
If parents still face the problem of "difficulty in refunding fees" after the intervention of administrative organs, they can only resolve disputes through arbitration or litigation. If the rights-defending parents and the off-campus training institutions have agreed on the arbitration clause, they can apply for arbitration; If you agree to go to court, file a case with the court.
It is worth noting here that who the parents sign the contract with and pay the fees to is related to who is the object of arbitration or prosecution. If the other party is a company, then the object of arbitration or prosecution is the company; If the training institution signs a contract, but the boss of the training institution collects the money in person, there may be a situation between the company and the shareholder hotchpot. It is better for the object of arbitration and prosecution to bring in individuals, which is more conducive to the execution and coordinated settlement of the case.
(5) Bring a lawsuit to a people's court.
After arbitration or litigation, there is another question, that is, whether the institution can refund the tuition fees of parents.
After the training institution runs away, the account of the company or school often has no funds. After getting the judgment document, parents can trace the capital contribution of shareholders of off-campus training institutions. Shareholders of the company who make false capital contributions or withdraw their capital contributions may request the court to investigate the shareholders as the object of execution.
However, if the training institution has filed for bankruptcy, parents can only declare their creditor's rights according to the enterprise bankruptcy law and other regulations, and then participate in the distribution of creditor's rights. Generally speaking, however, the creditors who get the priority first, and the rest are ordinary creditors. Tuition fees are generally paid back in the following order, and the refund actually requested by parents is often difficult to achieve.
If "training loans" are involved, the situation will become more complicated. Because consumers sign service contracts with off-campus training institutions and loan contracts with borrowing institutions, consumers, as creditors, have to bear repayment obligations to borrowing institutions according to the contracts, regardless of whether the contracts of training institutions are fulfilled or not. If the borrower is a qualified financial institution, parents need to pay off the loan before they can sue the training institution and demand compensation for losses; If the borrowing institution is unqualified, then parents can request to directly terminate the relevant loan contract.
It is not advisable to go to an institution that does not have a school license, pay more money as soon as it is fooled, transfer tuition fees to the other party's personal account, sign an informal contract, and wait for the institution to run away and irrationally defend its rights.
Of course, if parents have preliminary evidence to prove that off-campus training institutions are fraudulent-for example, when funds are tight and they are unable to perform the contract, they are still defrauding more parents to sign up for money. Then parents can also report to the public security department. If the investigation involves contract fraud, they will file a criminal case. Under the pressure of public security organs, it will be more efficient to solve problems such as refund of fees.
Thanks to Lawyer Li of Beijing Deheng (Xixian New Area) Law Firm for his legal guidance on this article.
Author | Jiaxing | Zhenguan Author