Case brief

    In December 2021, Tang applied for a parent-child swimming membership card at the Healthy Swimming Pool (pseudonym), purchased 53 swimming lessons, and transferred money to pay more than 6,000 yuan for the course fee. But then Tang made an appointment with the swimming pool, and the swimming pool shirked it for various reasons. Until August 2024, the Healthy Swimming Pool suddenly closed, causing Tang to be unable to go to the store for consumption. At present, Tang still has 48 courses that have not been consumed. Tang repeatedly found the swimming pool to negotiate a refund and was rejected, so he filed a lawsuit in court, asking the Healthy Swimming Pool and its affiliated health company (pseudonym) to bear joint and several liability and jointly return all course fees to Tang.

    The defendant's health swimming pool and health company did not appear in court and did not answer.

court hearing

   The focus of the dispute in this case: Should the course fee claimed by the plaintiff be refunded? Should the two defendants bear the joint repayment responsibility?

    The court held that this case was a service contract dispute. Tang paid the service fee to the health swimming pool, and the health swimming pool provided swimming services for Tang's children, and the two parties formed a de facto service contract relationship. Tang paid the service fee to the health swimming pool, and the health swimming pool should provide corresponding swimming services. Now the health swimming pool is closed and no longer provides services to Tang's children. The plaintiff Tang claimed that the remaining 48 swimming services were not enjoyed. The defendant's health swimming pool and health company failed to appear in court to participate in the litigation without justifiable reasons after being legally summoned by the court. It should be regarded as having given up the defense right to provide evidence and cross-examine evidence in the first instance. Therefore, the court accepted the number of times Tang claimed. In summary, the health swimming pool should refund 5966.49 (6588 ÷ 53 × 48) yuan, the excess part, the court will not support.

   As a branch of a health company, a health swimming pool shall, according to Article 74, paragraph 2, of the Civil Code of the People's Republic of China, engage in civil activities in its own name, and the civil liability arising therefrom shall be borne by a legal person; it may also be borne by the property managed by the branch first. If it is not sufficient, it shall be borne by the legal person. The health company shall bear the joint repayment responsibility for the debt of the health swimming pool.

    Finally, the court ruled that the health swimming pool and health company should return the service fee of 5966.49 yuan to Tang. The judgment has now come into effect.

Judge's statement

    According to the relevant provisions of the Consumer Rights Protection Law, if an operator provides goods or services in the form of advance payment, it shall provide them in accordance with the agreement. If it is not provided in accordance with the agreement, it shall fulfill the agreement or return the advance payment according to the requirements of the consumer; and shall bear the interest on the advance payment and the reasonable expenses that the consumer must pay. In this case, the swimming pool has been "closed down", and the operator can no longer provide the corresponding services to the consumer as agreed, and the unconsumed part of the fee shall be refunded.

    A branch office is an institution established by a legal person in a certain area to engage in business operations or other business activities. It is an integral part of the legal person in nature and does not have independent legal personality and cannot independently bear civil liability. Although a branch office may engage in various civil activities in its own name within the scope authorized by the legal person, its ability to bear liability is limited to a certain extent. According to the provisions of Article 74 of the Civil Code, the civil liability arising from the civil activities of a branch office of a legal person shall be borne by the legal person, or it may be borne first with the property managed by the branch office. If it is not sufficient to bear, it shall be borne by the legal person. Therefore, in a lawsuit involving a branch office, the branch office of the legal person may be listed as a co-defendant together with the legal person. The health swimming pool in this case is a branch of the health company, and the health company should assume the joint repayment responsibility for the debt of the health swimming pool.

    This article is transferred from the "Shandong High Law" WeChat official account, thank you here!