When consumers buy the “amusement insurance” product, they like the product, which not only has the protection of Hongkang changletai two all risks insurance, but also can obtain 20% of the tourism rights and interests of donkey mother tourism network. Unexpectedly, the agreed tourism rights and interests could not be fulfilled, and neither the insurance company nor the operator of donkey mother was responsible. If consumers fail to protect their rights and sue them to the court, who will bear the responsibility?
In recent years, the diversification of financial products has been continuously improved, and a large number of multi-party cooperative financial composite products have emerged. The Shanghai financial court said that through commercial cooperation, financial institutions combine financial products and other services into a financial composite product to increase commercial competitive advantage. The “insurance service provider” of the “financial service provider” shall be responsible for the performance of the “financial service provider” of the “financial service provider” in the contract. The case has played a positive role in regulating the financial composite product market in the name of various “treasure” and “insurance” and promoting the protection of consumers’ rights and interests in the financial market.
Hongkang insurance and donkey mother “kick the ball”
In November 2018, Yu paid 500000 yuan to buy 5 copies of “amusement insurance” (enjoying 20% tourism equity) products sold by Hongkang Life Insurance Co., Ltd. on the platform of lujinsuo. The product is also sold through Suning financial platform, China Minsheng Banking Corp.Ltd(600016) , China Everbright Bank Company Limited Co.Ltd(601818) and other channels. The “amusement insurance” product is composed of changletai all risks insurance (investment linked) and tourism rights and interests. The product rights and interests specify that users participating in the “amusement insurance” product plan can become members of donkey mother tourism network operated by Shanghai Jingyu Culture Communication Co., Ltd. and enjoy exclusive tourism rights and interests. During the participation period, 3% of the purchase amount of “amusement insurance” will be paid every year, and another 5% will be paid at the end of the fifth participation year, totaling 20%.
After successfully purchasing the above products, Jingyu company issued 15000 yuan of tourism equity in the first year to Yu’s donkey mother tourism network account. However, the tourism Equity Fund for the second year was not issued. Yu complained to Hongkang insurance and Jingyu company. Hongkang insurance promised that Yu could be “reimbursed” with the consumption invoice, but Hongkang insurance did not pay the corresponding cash after Yu consumed. Yu then filed a lawsuit to the court and asked Jingyu company to issue 15000 yuan of tourism rights and interests available to it in the donkey mother tourism network, and Hongkang insurance to compensate 15000 yuan if Jingyu company failed to fulfill the above obligations.
Hongkang insurance and the operator of “donkey mother” play ball with each other, saying it has nothing to do with themselves. Hongkang insurance, the product seller, believes that the “amusement” content in the “amusement insurance” – tourism equity fund should be borne by the service provider; Jingyu company, the operator of the service provider “donkey mother”, believes that it does not directly establish a contractual relationship with consumers. It issues tourism rights and interests according to the instructions of Hongkang insurance, and Hongkang insurance should bear the liability for breach of contract.
The court of first instance made a judgment that Hongkang insurance paid 15000 yuan to Yu and rejected Yu’s other claims. Hongkang insurance refused to accept and appealed to the Shanghai financial court.
final judgment: no less than
After hearing, the Shanghai financial court held that Hongkang insurance, as a product seller, has the contractual obligation to ensure that consumers enjoy the agreed tourism rights and interests, and should perform the contract in good faith. First of all, “amusement insurance” is a composite product composed of changletai all risks insurance and tourism rights and interests. The object of the contractual rights and obligations relationship established between consumers and Hongkang insurance is the comprehensive rights and obligations of “amusement insurance” products. Secondly, consumers buy “amusement insurance” products and establish a contractual legal relationship with Hongkang insurance, which takes “amusement insurance” as the subject matter. Hongkang insurance has the contractual obligation to ensure that consumers enjoy the agreed tourism rights and interests. The tourism rights and interests service is actually provided by Jingyu company. If Jingyu company fails to perform or fails to perform its debts as agreed, Hongkang insurance, as the opposite party of the contract, shall be liable for breach of contract to consumers. Finally, the rights and interests of financial consumers should be protected by laws and regulations such as the law of the people’s Republic of China on the protection of consumers’ rights and interests. When there is a dispute between the operator selling products and the operator actually providing services due to the internal cooperation agreement, both operators refuse to undertake contractual obligations to consumers, which infringes on the legitimate rights and interests of consumers.
The Shanghai financial court said that a contractual relationship of tourism rights and interests service was established between consumers and Jingyu company, and Jingyu company, as a service provider, should continue to perform the contract according to law. First of all, the product selling platforms Lu Jinsuo, Hongkang insurance and donkey mother tourism network have publicized the core terms of the contractual rights and obligations of the tourism rights and interests service of the “amusement insurance” product, that is, consumers can obtain the tourism rights and interests fund in the donkey mother tourism network account and consume it on the website by purchasing and holding the “amusement insurance” product. The launch of this product is based on the cooperative relationship between Hongkang insurance and Jingyu company. The two sides also signed a cooperation agreement and agreed to provide tourism rights and interests services to customers. In this case, after the consumer Yu purchased the “amusement insurance” product, Jingyu company issued the first year’s tourism rights and interests fund to the donkey mother tourism network account corresponding to the consumer’s reserved mobile phone number. The amount and proportion of the payment are consistent with the description of tourism rights and interests agreed in the contract, and Yu has also used it. The above evidence forms a chain of evidence to prove that Jingyu company knows well about the tourism rights and interests of “amusement insurance”, is willing to be bound by the rights and obligations of tourism rights and interests service, and has performed in accordance with the contents of the contract. Secondly, Jingyu company set up a special page on the donkey mother tourism website to introduce the tourism rights and interests of “amusement insurance” products, and attached product purchase links and use links, indicating that Jingyu company not only knows that it is bound by the tourism rights and obligations of “amusement insurance” products, but also actively guides the browsing users of its website to purchase “amusement insurance” products through the sales channels of Hongkang insurance, It plays a role in guiding and increasing the flow of products to its platform audience.
The Shanghai financial court said that the debts of the two subjects constitute unreal joint and several debts. Consumers can request one or all of the debtors to perform their debts, and the other debtor does not have to bear corresponding liabilities to consumers to the extent that one debtor has performed its debts. Hongkang insurance has the contractual obligation to ensure that consumers enjoy the normal use of “amusement insurance” products. Jingyu company has the contractual obligation to pay tourism rights and interests to consumers and ensure their normal use. Consumers can claim rights from either party according to the above contractual relationship. The above two claims aim at the same payment, and the debtor bears the payment liability for the same content to the consumer based on their respective legal relations. The two debts constitute unreal joint and several debts. After one party performs to the consumer, the other party does not have to perform to the consumer within the scope of performance. However, after Hongkang insurance and Jingyu company have assumed corresponding contractual responsibilities to consumers, their commitment to losses and the final internal distribution of responsibilities can be handled separately according to the cooperation agreement and performance.
In conclusion, on February 21, 2022, the Shanghai financial court made a final judgment: it was determined that Hongkang insurance, the seller of “amusement insurance” products, and Jingyu company, the provider of tourism services, should bear the contractual obligations and liabilities for breach of contract for the payment of tourism rights and interests to consumers. Within the time limit, Jingyu company will distribute 15000 yuan of tourism rights and interests to Yu in the account of donkey mother tourism network; If Jingyu fails to fulfill the above obligations within the time limit, Hongkang insurance shall pay Yu 15000 yuan within the time limit.
judge’s interpretation: financial services into the scope of consumer protection
Shi Wenzhang, judge of the appeal review and trial supervision division of the Shanghai financial court, believes that the “service” part of the “insurance + service” financial composite product is performed by the service provider according to the contents of the contract. The seller of financial products has the contractual obligation to ensure that consumers enjoy the services agreed in the contract, and both parties should bear the responsibility.
In recent years, the diversification of financial products has been continuously improved, digital, networked and intelligent financial products have emerged one after another, and a large number of multi-party cooperative financial composite products have emerged. Through commercial cooperation, financial institutions combine financial products and other services into a financial composite product, which is sold under a given name, and attract financial consumers to buy products by superimposing interests, so as to increase commercial competitive advantage. Some product sellers even focus on publicizing other service contents, ignoring the risk disclosure of main financial products, causing financial consumers to have a wrong understanding of financial composite products. Driven by the interests of cooperating with financial institutions to obtain investment and attract high net worth customers, service providers often actively seek cooperation and promote cooperative products. The “amusement insurance” product involved in this case is a “insurance + tourism service” financial composite product jointly launched by the insurance company and the tourism service provider.
Shi Wenzhang said that in practice, due to internal disputes among partners and other reasons, consumers are unable to obtain relevant services according to the contract from time to time. Product sellers often refuse to honor relevant commitments on the grounds that they have revealed the information of service providers and established a service contract relationship between consumers and service providers, while service providers assume that the products are not sold by them, They refuse to continue to provide services on the grounds that they have not directly signed a contract with consumers, and the rights and interests of consumers cannot be guaranteed, which is easy to lead to mass rights protection events.
Shi Wenzhang pointed out that financial institutions use the superposition of various types of services as a gimmick to attract consumers. When the superposition of services is taken as a substantive part of the product publicity name and product content, consumers pay consideration, which is aimed at accepting the package of services of the financial composite product. According to the regulations of Shanghai Municipality on the protection of consumers’ rights and interests, if the service is actually provided by other service providers, the financial institution shall fully disclose the use scenario of the specific service and the relevant information of the service provider to consumers, and ensure that consumers can enjoy the service according to the contract. The disclosure of service provider information does not exempt financial institutions from their contractual obligations, and financial institutions should perform their contractual obligations to consumers. Service providers publicly promise to purchase financial composite products to obtain their services and actively promote products. In fact, they have partially performed the service contract to consumers, and shall not refuse to perform the contract on the grounds of internal disputes between them and cooperative institutions.
The law of the people’s Republic of China on the protection of consumers’ rights and interests brings financial services into the scope of consumer rights and interests protection, and the rights and interests of financial consumers should be protected by law. In order to protect the right to know of financial consumers, business operators shall introduce the product content in a timely, true, accurate and comprehensive manner, and shall not make false, fraudulent, concealed or misleading publicity. Operators should also follow the principle of good faith, uphold good faith, abide by their commitments, fulfill relevant service commitments in accordance with the agreed manner, time limit and scope, and protect the rights and interests of consumers.
Shi Wenzhang stressed that as the opposite party of the contract, the operator of financial composite products in this case has the contractual obligation to ensure that consumers enjoy the agreed rights and interests, and the operator who actually provides services should perform in accordance with the service contract. The case has played a positive role in regulating the financial composite product market in the name of various “treasure” and “insurance” and promoting the protection of consumers’ rights and interests in the financial market.
