Three-bundle significance clauses should be more detailed

On September 21st, the General Administration of Quality Supervision, Inspection and Quarantine issued the “Responsibility Regulations for the Repair, Replacement, and Return of Household Automobile Products (Draft for Solicitation of Comments)” (hereinafter referred to as “the Opinion Draft”) on its website, and it also solicited the public to present the hearing statement to the public. A legislative hearing was held in late October. When the news came out, it was the attention of the industry, media and consumers.

Why has the "Three Guarantees" regulation for cars that had been solicited in 2004 have made new progress? What are the highlights of the newly released "opinion"? What are the deficiencies yet to be improved? How do consumers and distributors respond to this law? On September 26 and 27, this reporter interviewed the experts of the quality inspection industry, legal professionals, car dealerships, and car consumers, and got various perspectives on the "opinion".

Policy Analysis China Quality Association Fan Tianshun: The biggest highlight of the "opinion" is that six years after the return of goods can be implemented, the old matter is revisited and the "Rules on the Responsibility of Repairing, Replacing and Replacing Household Cars" has once again entered public view.

The same as last time, no one can be sure whether it will be run aground again; the difference from the previous time is that today, China’s car ownership has exceeded 100 million, and the car has changed from a luxury of a few people. The necessary tool for most people to travel. More people make it easier to travel by car. As a result, more people are plagued by the quality of automotive products and the “no complaints”.

"In this context, if this "opinion" can be legislated and implemented, it will be a very good thing for the auto industry and for car consumers, because it clearly clarifies the specific problems of repair, replacement, and retreat of domestic cars. While protecting the rights and interests of consumers, it also provides important ideas for the smooth development of the entire automotive industry,” said Fan Tianshun, Assistant Secretary-General of the China Quality Association and Director of the User Work Department.

The "Opportunity" issued this time consists of 8 chapters and 46 articles, which clearly stipulate the obligations of the seller, the obligations of the repairer, the obligations of the manufacturer, the responsibility for exemption of household automotive products, liability exemption, and handling disputes. To most of the concerns of consumers, such as the validity of the Three Guarantees for home car products, and the conditions and standards for the return and replacement of home automobiles.

The “Contract of Opinion” clearly stipulates the standard of returning vehicles. For the cars with quality problems, most distributors and manufacturers in China have been adhering to the principle of “relying on life and maintaining more than ever”. Consumers want to change cars and return cars. It is difficult to talk to the blue sky. This time, the stipulation on the three-package responsibility of domestic cars seems to make people see the hope of returning cars.

In an interview with this reporter, Fan Tianshun also expressed this view: “I think the highlight of this version of the “opinion” is that it clearly stipulates that during the period If the repair is not successful or a new fault occurs, the product can be returned without testing."

In an interview with reporters, Chai Xu, director of the legal department of Symond (Beijing) Intellectual Property Agency Co., Ltd., also stated that the "advice paper" issued by the General Administration of Quality Supervision, Inspection and Quarantine has made progress in terms of system, such as the possibility of changing and returning vehicles. Sex, clear the seller's payment obligations, etc., but there will also be product return and replacement are subject to repair conditions, deliberately delaying time and other issues.

Chai Xu quoted the provisions of Article 46 of the Tort Liability Act to explain the problem: If a defective product is discovered after the product is put into circulation, the producer or seller shall promptly take remedial measures such as warnings and recalls. If failure to take remedial measures in time or remedial measures do not result in damage, it shall be liable for infringement. However, in the "opinion", the quality of product defects found in the repair did not require the recall.

There is a lack of objectivity in the criteria for the expiration of the three guarantees and the replacement standards. The “three-guarantee period” of Article 20 of the “Contract of Opinions” is a bit low. In my opinion, the validity period of the three guarantees of the vehicle should be no less than 3 years or 60,000. Kilometers, the quality guarantee period of the main assembly and system should be increased to 5 years or 10,000 kilometers, and now many companies have already been able to do this.” Zhang Weiyun believes that the development of existing regulations should take into account the degree of technological development and the future The direction of development, and high standards will make many manufacturers feel the pressure, so that they have to pay attention to product quality.

"Moreover, there is a relatively big loophole in the "opinion", that is, Article 27 only stipulates that after the replacement of the entire vehicle that meets the replacement conditions, the seller shall provide the consumer with a new three-guarantee certificate, and the replacement three-pack The validity period has been recalculated since the date of replacement, but there is no provision for the validity period of the three packages after the replacement of key components and assemblies, and one can be added here, the replacement assembly and system, and the validity period of the three packages should also be from the date of replacement. Recalculate.” Zhang Weiyun told reporters.

Zhang Weiyun mentioned this point in particular because he was recently dealing with a case. “A consumer in Chengdu bought a car imported from a well-known brand in Germany. The problem occurred when the engine did not run for 10,000 kilometers. After the replacement of one, it took more than 10,000 kilometers and it was broken. This consumer is worried that If you do another change and then run 10,000 kilometers and then break it, what should you do? At that time, the product will have a three-period period and it will cost 98,000 yuan to replace it. Such a tossing consumer can stand it!"

Therefore, Zhang Weiyun believes that the replacement engine should recalculate the validity of the three guarantees. His basis is the provisions of Article 12 of the “Explanatory Draft”: Parts and components repaired by the repairer for repair of the Three Guarantees shall be original parts provided or approved by the manufacturer and inspected and qualified, and the quality standards shall not be lower than that of the family car. Produce products on the assembly line. "Since the production line's product warranty can reach 3 years or 60,000 kilometers, the replacement product should also reach 3 years or 60,000 kilometers."

Chai Xu believes that the current "opinion" has no uniformity in vehicle replacement and return criteria and lacks objectivity: "In the first paragraph of Article 24, two repairs have been performed because of serious safety performance failures. If performance failures have not been eliminated or new serious safety performance failures have occurred, consumers may choose to return the goods. However, the problem is that vehicle maintenance is of a certain degree of professionalism. Vehicles have quality problems that meet the above-mentioned conditions and consumers are not able to make judgments. Only sellers or repairers have the ability to make judgments. Vehicle dealers as competitors are also referees, so the return obligation may be in the form of an application process."

New energy vehicles should be included in the Three Guarantees legislation. Specifically, the “Explanatory Draft” lists in Article 24 that one of the following three conditions occurs during the validity period of the vehicle three guarantees: cumulative failure due to serious safety performance After two repairs, serious safety performance failures have not been ruled out or new serious safety performance failures have occurred; engines, transmissions, and bodies have failed to be used normally after the cumulative replacement of the assembly due to product quality problems; Article 20 Any other assembly or system expressly stated in the three-package voucher can not be used normally after the replacement of twice the quality of the same main component product. Consumers can choose to return, replace or repair the product.

The reporter learned that the “Lemon Law” in California in the United States has similar provisions, such as the possibility that a product’s defects may cause the car to be fatal or injury-prone when it is driven, and consumers notify the original factory or dealer at least once, After two or more repairs are still unable to solve the problem, the car buyer may request the manufacturer to refund or replace the new product unconditionally, and may not refuse this.

"The obvious benefit of this regulation is that it does not require inspection. The car itself is a high-priced commodity. The detection of automobile faults, especially the detection of some complex problems, is very costly. For some low-end vehicles, its detection The cost will even exceed the price of the vehicle itself. If you still require testing, it will be very difficult to operate." Fan Tianshun said.

At the same time, Fan Tianshun added the benefits of a complete and detailed Three Guarantees regulation to automobile manufacturers: “There is a problem with the quality of a product. Repairing, changing, and retreating are just things that are reasonable. The automotive products Three Guarantees Regulations look on the surface. It may cause some pressure on auto manufacturers, but in fact this pressure can become a driving force, which forces automakers to pay more attention to product quality, make products better, and avoid excessive returns, exchanges, and repairs. Reducing the resulting costs and losses accordingly."

The definition of the key concept is not clearly defined. Further implementation details Although the significance of the “advice paper” is affirmed, although there will be evidence to rely on the return of the vehicle and change of vehicle, disputes and doubts remain. First of all, many people do not believe that the auto three bags of "difficulty" can be "successful" after 6 years. Second, even if they are introduced, whether they really have operability, rather than being in form, will become a piece of paper.

Fan Tianshun also expressed this concern: “Most of the terms in the draft are very principled and need further consideration and refinement. Take the condition of 24 returns – 'serious safety performance failure' In the end, what kind of failure is considered as 'serious', and whoever has this "serious" decision is a question that needs further elaboration and definite. If the provisions are not clear, manufacturers and consumers may be in conflict with each other."

Fan Tianshun believes that the problem of automobile safety is different from that of bicycles, home appliances, and mobile phones. It involves many aspects such as the power system, brake system, control system, tires, and the safety settings of the vehicle itself. A simple enumeration such as the "Annex" article 23 does not work. It must be very clear that "what system failures cause problems and to what extent" can be returned. He took the brakes as an example. "For example, specifying the faults on the brakes, you can cite two serious safety issues: the braking system is not sensitive or the brakes are damaged." He suggested that if legislation can be made, it can be done on the basis of laws and regulations. An implementation rule defines the key concepts and conditions. “In this case, it will provide consumers with great convenience in returning and changing goods, and it also allows dealers to follow laws and regulations and to follow rules.”

"Moreover, after the auto three-package regulation has solved the problem of the vehicle itself, it also involves the issue of vehicle-related licenses and purchase tax. In my opinion, the traffic control department should also formulate a supporting implementation rule in parallel with the Three Guarantees Regulations. If there is no such rule, the automobile Three Guarantees Regulations will not survive."

For many consumers questioned - even with the details, product failures are in line with the conditions of return, whether the manufacturers can successfully return, Fan Tianshun believes that this mainly depends on two aspects: on the one hand depends on whether the supervision department can supervise the place , "Because consumers have certificates and records for each maintenance, if they do meet the conditions for return, as long as the supervision of the supervision department is large, the problem is expected to be resolved"; on the other hand depends on how consumers use the law to protect themselves The right, "Any laws and regulations from the introduction to the implementation of a multi-party game process, especially related to the product of the three bags of such civil disputes, mainly to see whether consumers can effectively use the laws and regulations of this weapon to safeguard their own legal rights."

It is suggested that Supplementary Manufacturers shall be jointly and severally liable. Article 4 of the "Contract of Comments" states that the principle of who sells household car products shall be responsible for the Three Guarantees. Some netizens said on Weibo: "This is obviously a matter for all dealers. The dealers can't afford to hurt."

"The fourth rule first affirms and clarifies the seller's first responsibility. There is no objection. Because any customer, whether it is buying a car, repairing or returning a car, is directly contacting the seller, not the manufacturer." If there is no clear provision for the seller to bear primary responsibility, it may cause consumers to deal with producers thousands of miles away. The cost of this communication is too high." Fan Tianshun also proposed: "This article can be added to make manufacturers and sellers bear the same responsibility for the product three bags, but the first responsibility of the seller must be clear."

Finally, Fan Tianshun emphasized that as consumers, we should pay attention to the trend of laws and regulations and clearly understand the relevant laws and regulations. In the event of a vehicle failure, we can fight for the situation that is most beneficial to ourselves. "Consumers only need to understand when they consume: which laws and regulations are to protect their rights and interests, and which products have problems that are solved by special three-package regulations."

Legal opinion Beijing Tongshuo Law Firm Zhang Weiyun:

“At present, there are no specific regulations for the automobile three bags, but there are many disputes and the cases are one by one. Although the “three-guarantee period” of the “advices” is of a relatively low standard, the conditions for returning and exchanging goods are relatively harsh, but the introduction of the three-packet package is more difficult than ever. "Yes," said lawyer Zhang Weiyun of Beijing Tongshuo Law Firm in an interview with reporters on September 27.

As a legal person with a professional background in autos, Zhang Weiyun was invited by the Beijing Bar Association in 2005 to provide opinions on the draft of the last three-car package. This time, he carefully studied the "opinion", based on the relevant cases at hand, and put forward several suggestions for the "opinion". Zhang Weiyun pointed out in particular that "it is clear that the Tort Liability Act should be used as a legal source for the "opinion draft", adding it to the first article and becoming a basis for formulating the automobile three-bag package." Zhang Weiyun told reporters.

The source of law should refer to the Tort Liability Act

The reporter saw that the first article of the "opinion" was as follows: In order to protect the legitimate rights and interests of consumers of household car products, the sellers, manufacturers, and repairers of home car products must be repaired, replaced, and returned (hereinafter referred to as "three guarantees"). ) Responsibilities These Regulations are formulated in accordance with relevant laws and regulations such as the "Product Quality Law of the People's Republic of China" and "Consumer Protection Law of the People's Republic of China".

Zhang Weiyun said that if there are defects in automotive products, it involves the issue of product liability, and Chapter 5 of the Tort Liability Act specifically stipulates product liability. “In particular, Article 45 clearly clarifies the problems that producers and sellers should bear with respect to preventive civil liability. If it is expressly provided that product defects endanger the personal and property safety of others, the infringed person shall have the right to request producers and sellers. Take responsibility for eliminating infringements, eliminating dangers, and other infringement liabilities,” said Zhang Weiyun. “Our three-car package regulations actually solve this problem. That is, during the use of automotive products, we found that it has certain defects and demanded that manufacturers and distributors bear the burden. Article 45: Product defects should eliminate obstacles and eliminate dangers, and repairs, exchanges, returns, and related compensations in the Three Guarantees Regulations are all forms of exclusion and prevention of dangers."

"Another, more prominent issue is that this "opinion draft" does not take into account the three packs of new energy vehicles such as hybrids and energy-saving household cars. This part of the vehicle has its own particularity," said Zhang Weiyun.

With the development of technology and changes in people's consumption concepts, energy-saving and new energy vehicles will increasingly enter the public's home car consumption options. At the same time, the "Energy Conservation and New Energy Vehicle Development Plan (2011-2020)" also mentioned that by 2020, the cumulative production and sales volume of new energy vehicles will reach 5 million, and medium/heavy hybrid passenger cars will account for the annual sales of passenger vehicles. More than 50%.

Zhang Weiyun told reporters that he recently received a case concerning a Japanese hybrid car imported from a well-known brand. The problem is that the cable connecting the battery and the drive motor is heating during the continuous charging and discharging process. Melting the floor glue, and then aging some of them will cause spontaneous combustion; at the same time, the battery outlet is designed to be above the backrest in the passenger compartment, which is very likely to cause accidents. "After the release of this "opinion," the case was just filed in Chaoyang District today." Zhang Weiyun looked a little excited.

Energy-saving and new-energy household cars differ from traditional cars in that they replace the original fuel-powered engine with a battery. Zhang Weiyun said: “Batteries, cables, and wires have a lot of potential safety hazards in their work. After aging, they can easily cause circuit accidents and fires, and these problems cannot be demonstrated in the short term. My suggestion is that in the second Thirteen articles include a special three-pack package for sale of energy-saving and new-energy household cars, and it is recommended to extend the return period and the three-pack validity period.”

Zhang Weiyun said frankly: “Now many domestic automobile factories are engaged in new energy vehicles, and the country also has relevant policy support. However, policy support can not be made at the cost of people’s right to life and health. The auto three packs bill should take this into consideration.”

Part of the provisions of the “Responsibility Regulations for the Repair, Replacement, and Return of Household Automobile Products” (Draft for Comment):

Article 20: The valid period of the three-vehicle vehicle for household car products should not be less than two years or 40,000 kilometers, whichever comes first. The warranty period for the main assembly and system should not be less than 3 years or 60,000 kilometers, whichever comes first.

Article 23: Within 30 days after the sale of domestic automotive products, there are serious safety performance failures such as cracking of the body, failure of the braking system, failure of the steering system, and fuel leakage due to product quality problems. Consumers may choose to return the product. , replacement, repair. If the consumer requests a return, the seller shall be responsible for a free return. Manufacturers who have expressly indicated quality problems of the main components of the engine and transmission in the three-guarantee certificate may choose to replace the assembly.

Article 25: During the validity period of the vehicle's Three Guarantees, the accumulated time for product quality repairs shall not exceed 35 days; if it exceeds 35 days, or if the same quality problem is repaired more than 5 times in total, the consumer may rely on the three-package certificate. Repair records, car invoices, the seller is responsible for replacing the same brand with the entire vehicle model.

Article 26: During the period of validity of the vehicle's Three Guarantees, the repairer shall provide the customer with a spare car or provide reasonable traffic for each repair time due to product quality problems, including waiting time for repairs of spare parts, for more than five days. Cost compensation.

Article 27: Within the period of validity of the three vehicle packages of the whole vehicle, the seller shall provide new qualified household automobile products to the consumers within the validity period of the three vehicle packages of the whole vehicle, and provide new three-guarantee certificates. The replacement period of the three guarantees shall be valid. Recalculated from the date of replacement.

In case of replacement or return in accordance with these Regulations, the relevant taxes and fees stipulated by the country in question shall be borne by the seller.