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No. 8 of Ten Model Cases Involving the Protection of Consumer Rights Issued by the Supreme People's Court, and White Paper No. 8 of Status of the Safeguarding of Consumer Rights by the People's Courts (2010-2013) Issued by the Supreme People's Cour: Sun Baojing v. Shanghai Yidingdei Beauty Co., Ltd. (Health care service contract dispute)
最高人民法院公布10起维护消费者权益典型案例之八、最高法院发布《2010-2013年人民法院维护消费者权益状况》白皮书之八:孙宝静诉上海一定得美容有限公司保健服务合同纠纷案
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No. 8 of Ten Model Cases Involving the Protection of Consumer Rights Issued by the Supreme People's Court, and White Paper No. 8 of Status of the Safeguarding of Consumer Rights by the People's Courts (2010-2013) Issued by the Supreme People's Cour: Sun Baojing v. Shanghai Yidingdei Beauty Co., Ltd. (Health care service contract dispute)
(Health care service contract dispute)
最高人民法院公布10起维护消费者权益典型案例之八、最高法院发布《2010-2013年人民法院维护消费者权益状况》白皮书之八:孙宝静诉上海一定得美容有限公司保健服务合同纠纷案
[Key Terms]
service contract ; a standard clause ; prepaying the service charges
[核心术语]
服务合同;格式条款;预付服务费
[Disputed Issues]

If the service provider stipulates in the standard clause that if the consumer waivers accepting services, the unconsumed prepaid service charges will not be returned, is the stipulation valid?
[争议焦点]
服务提供者在合同格式条款中约定如消费者放弃接受服务,未消费的预付服务费不予退还,是否有效?
[Case Summary]

During the service contract fulfillment period, a consumer has the right to waiver accepting services, and if the service provider suffers losses, it may request the consumer to assume certain liability, but the prepaid service charges that haven't been consumed by the consumer shall be refunded. In the standard clause, the service provider stipulates that, if the consumer waivers accepting services, the prepaid service charges will not be returned. Such clause rules out the legitimate consumer rights and runs counter to the fairness principle. Under Article 40 of the Contract Law, where the party that provides the standard clause exempts itself from its liabilities, increases the liabilities of the other party, and deprives the other party of the principal rights, the clause is invalid. Therefore, if the service provider stipulates in the standard clause that if the consumer waivers accepting services, the unconsumed prepaid service charges will not be returned, such stipulation is invalid.
[案例要旨]
消费者在服务合同履行期间,有放弃继续接受服务的权力,服务提供者因此受到损失,可以要求消费者承担一定的责任,但对于消费者未消费的预付服务费,理应予以退还。服务提供者在合同格式条款中约定如消费者放弃接受服务,未消费的预付服务费不予退还,排除了消费者合法的权利,有违公平原则。根据《合同法》第四十条的规定,提供格式条款一方免除其责任、加重对方责任、排除对方主要权利的,该条款无效。因此,服务提供者在合同格式条款中约定如消费者放弃接受服务,未消费的预付服务费不予退还,应属无效。
No. 8 of Ten Model Cases Involving the Protection of Consumer Rights Issued by the Supreme People's Court, and White Paper No. 8 of Status of the Safeguarding of Consumer Rights by the People's Courts (2010-2013) Issued by the Supreme People's Court: Sun Baojing v. Shanghai Yidingdei Beauty Co., Ltd. (Health care service contract dispute) 

最高人民法院公布10起维护消费者权益典型案例之八、最高法院发布《2010-2013年人民法院维护消费者权益状况》白皮书之八:孙宝静诉上海一定得美容有限公司保健服务合同纠纷案

—The “unilaterally imposed clauses” of a health care service contract are invalid, and the prepaid service charges for unconsumed services should be refunded. 

——保健服务合同中的“霸王条款”无效,未消费的预付服务费应予退还
1. Basic Facts都拉黑名单了,还接个P (一)基本案情
On July 18, 2010, Sun Baojing entered into a service agreement with Shanghai Yidingdei Beauty Co., Ltd. (hereinafter referred to as “Yidingdei Company”), agreeing that: The service term was six months, VIP courses of treatment valued at 100,000 yuan were selected, all courses of treatment were at a unit price discount of 15%, and the charges were to be deducted from the beauty card. Where Sun Baojing failed to receive services as planned or according to the schedule and remained so upon kindly notification, if the service term expired, Sun Baojing should be deemed to have forgone the services. If Sun Baojing herself caused the nonperformance of the proposed plan, she may not claim any refund of the money already paid. If Sun Baojing failed to participate in the relevant treatment courses for three consecutive months for personal reasons, Yidingdei Company had the right to terminate services, and Sun Baojing may not claim any refund or compensation. In a statement issued to Sun Baojing, Yidingdei Company declared that Sun Baojing should follow the instructions and arrangements of her counselor and if her treatment failed or progress of treatment was slow for personal reasons, Yidingdei Company should neither be held liable in any way nor refund the balance in the prepaid card and would reserve the right to claim damages for the breach of contract. Sun Baojing signed the statement. Sun Baojing paid service charges to Yidingdei Company twice, in a total amount of 100,000 yuan, and received the corresponding body slimming treatment multiple times. Afterwards, Sun Baojing stopped the body slimming treatment because she did not lose weight. On the grounds that she had lost faith in the services provided by Yidingdei Company, the service term had expired, and Yidingdei Company failed to provide effective services after collecting service charges, Sun Baojing filed a lawsuit with the court, claiming that the service agreement involved should be rescinded and Yidingdei Company should refund 90,000 yuan to Sun Baojing. 2010年7月18日,孙宝静与上海一定得美容有限公司(以下简称一定得公司)签订服务协议,约定:服务期限6个月,选择价值10万元的尊贵疗程,所有项目疗程单价85折从卡内扣。孙宝静如未按计划及进程表接受服务,经善意提醒仍未改善且超过服务期限的,视为放弃服务;如因自身原因不能按制定的方案履行,则不能要求退还任何已支付的费用;如因自身原因连续三个月不能参加相关项目,则一定得公司有权终止服务,孙宝静不得要求退赔任何费用。一定得公司向孙宝静发布声明书,声明孙宝静必须遵从顾问指示和安排,如因个人原因不能配合致疗程失败或进度缓慢,一定得公司不负任何责任,也不退还余款并保留追究违约责任的权利。孙宝静在声明书上签字确认。之后孙宝静分两次向一定得公司支付了10万元的服务费,并多次接受相应的瘦身疗程服务,后孙宝静因体重未能减轻,停止接受瘦身疗程。孙宝静以对一定得公司的服务失去信心且服务期限业已过期,一定得公司收取服务费未提供有效服务为由,向法院提起诉讼,要求解除涉案服务协议,一定得公司返还孙宝静9万元。
2. Judgment
不接我们电话 也不给拒接原因
 (二)裁判结果爬数据可耻
After the trial upon appeal, the No. 2 Intermediate People's Court of Shanghai held that: Because the term of the service agreement had expired when Sun Baojing filed the lawsuit, the service agreement had been invalid, and it was unnecessary for Sun Baojing to claim rescission of the agreement. Sun Baojing unilaterally forwent services and should assume the consequences thereof. Since Sun Baojing refused to accept the whole package of services for which service charges were prepaid, not discount should be granted to the service courses that Sun Baojing had received. The price of services that Sun Baojing had received amounted to 31,800 yuan, which should be deducted from the prepaid service charges of 100,000 yuan. Although it was indicated in both the agreement and the statement that if Sun Baojing forwent services or failed to receive services as arranged, no money would be refunded, such provisions were standard clauses inserted by Yidingdei Company that failed to define the rights and obligations of both parities under the principle of fairness, Sun Baojing's responsibilities were clearly aggravated, and her rights were excluded. Therefore, such clauses were invalid. After having taken into account factors such as the extent of performance of the agreement, the provision of services, and the fault of Sun Baojing who unilaterally forwent services, according to the principles of fairness and good faith, the court determined that Sun Baojing should pay 20,000 yuan of liquidated damages to Yidingdei Company. After deducting the service charges of 31,800 yuan and the liquidated damages of 20,000 yuan from the prepaid service charges of 100,000 yuan, Yidingdei Company should refund 48,200 yuan to Sun Baojing. The court of second instance entered a judgment requiring Yidingdei Company to refund 48,200 yuan to Sun Baojing in a lump sum and dismissing other claims of Sun Baojing. 上海市第二中级人民法院二审认为,孙宝静提起诉讼时已过服务协议约定的终止期限,服务协议已失效,孙宝静无须再主张解除该协议。孙宝静单方面放弃服务,应承担由此产生的后果。因孙宝静不接受预付款金额的全额服务,故对已接受的服务项目不能享受优惠折扣,已接受的服务对应的总价款为31800元,在10万元预付款中予以扣除。服务协议及声明书中虽写明孙宝静放弃或不按照安排接受服务,则不退回任何费用,但这些约定系由一定得公司提供的格式化条款,未遵循公平的原则来确定双方之间的权利和义务,明显加重了孙宝静的责任,排除了其权利,故该约定无效。法院综合考量协议的履行程度、提供服务的情况、孙宝静单方面放弃服务的过错程度等因素,依照公平原则和诚实信用原则,确定孙宝静需向一定得公司支付2万元的违约金。在10万元预付款中扣除服务费用31800元、违约金2万元后,一定得公司还需返还孙宝静48200元。据此,二审法院依法判决一定得公司一次性返还孙宝静48200元,驳回孙宝静的其他诉讼请求。
     
     
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