Shop on the net, abroad buy on sb's behalf, small business
Spending of of all kinds network is increasing,
Express closes more,
Hard to avoid can encounter the situation that lose or mars.
Then the issue came
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Sending when, because won't have support value to goods normally, once express is missing or mar, express company often is met the account on express sheet " domestic express delivery serves an agreement " the clause regards compensation as the basis, indemnity and the loss that cause actually may be widely divergent, "Claim for compensation is difficult " the thing of one big irritated heart that makes consumer for a time.
Express does not take care to lose or be marred,
Who will buy sheet for this?
How should buy sheet again?
Recently, flower the one origin express that forensic careful writtens guarantee is missing
The case that has claim for compensation gave out to this the answer.
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Basic details of a case
The merchant of inn of the net that clean out treasure that Mr Li is fittings of mobile phone of a sale, pass Y for a long time fast give a company to send goods to the client. On November 13, 2016, mr Li has fittings of a batch of mobile phones to need to send the golden young lady of area of cropland of Shenzhen city blessing, its are pressed as usual, in Y fast the blank that gives a company to offer fast give sheet to go up to fill in simply close after sending message, give goods Y fast give a company pull member, paid freight 43 yuan, but Mr Li did not fill in at that time clear goods name, amount, weight, bulk, also did not have support value to goods. Y fast give a company to pull member pull hind, at late that day admiral the goods of Mr Li is handed in to Y fast give a company to be located in Guangzhou city the site of road of river of sea bead Oubin, this site closes hind, have have a change of luck not in time that day.
On November 20, between 30 date, mr Li passes Y for many times fast give company official net to inquire express content spreads information, finding sheds information to did not produce change all the time. Examine minutely for many times via Mr Li, y fast give a company to will tell Mr Li on December 5 its are express and likely need to lose processing. On December 16, y fast give a company to tell Mr Li again its are express successful already deliver. Mr Li is contacted with client gold young lady at once, golden young lady is mirrorred not sign after receiving sth any express, mr Li checks content to spread information again, discovery was not updated, also do not have record of sign after receiving sth.
Classics plum gentleman for many times with Y fast give a company to have negotiation, on January 12, 2017, y fast give a company to admit and inform Mr Li goods to be lost in carriage road, because Mr Li did not have support value to goods, according to fast the reverse side that give sheet " domestic express delivery serves an agreement " agreement, right not support value article can not exceed 300 yuan according to highest compensation only / the standard of the ticket undertakes compensatory. Mr Li does not agree with Y fast the compensatory plan that gives a company, after bilateral classics talks things over for many times not if really, mr Li provides shape to sue to the court, requirement Y fast give a company to recoup a loss according to the real value of goods.
Controversy focus
1, Y fast give a company fast of the account on the reverse side that give sheet " does domestic express delivery serve an agreement " in about " not doesn't highest compensation exceed support value article 300 yuan / ticket " is the clause effective?
2, how does the actual loss of Mr Li decide?
Juridical result
Mr Li to the flower the court carries those who remove carriage contract issue to appeal to, requirement Y fast give a company to because goods loses the actual loss that cause,compensate for its 37238 yuan. Lose the stock value of goods for the proof, mr Li was offerred to the court clean out treasure to trade chatting record of sheet of scheme of chatting check scheme, stock up check, replenish onr's stock, small letter, pay treasure to turn Zhang record and clean out treasure to order goods record, this somes of evidence shows Mr Li passes hypostatic inn, small letter to reach the net that clean out treasure the shop that 3 kinds of means part to sell fittings of mobile phone communication to much home buys experience case goods, the value is total 30964 yuan, mr Li allegation has partial payment for goods additionally to fasten cash means settle accounts, but among them certain and hypostatic inn did not open receipt to its. Y fast the goods that gives a company to approbate Mr Li to send is mobile phone fittings, but real to the goods that Mr Li place holds value does not grant to approbate.
Y fast the Y that gives a company to offer fast give (the detailed information is only) of the front " sender signs " one column carries bright: "He already were read and sufficient understanding accepts Y fast give (the detailed information is only) ! Oneself affirm 30 thousand yuan to place hands in the article value that place not to exceed a RMB. Not support value is express and missing, mar or lack, content category maximum indemnity norm is a RMB 300 yuan / ticket, file kind maximum indemnity norm is 100 yuan / ticket (if have additionally,agree, expressage both sides talks things over) ; Support value is express press by support value amount of compensation " . This fast gives odd the reverse side to presswork have " domestic express delivery serves an agreement " , the content of this agreement includes: "... compensate for a standard: Whether support value is chosen of one's own accord by sender, precious and express proposal chooses support value, support value expends lowest to be 1 yuan. Not of support value express, missing, mar, lack, highest compensation does not exceed article 300 yuan / ticket, the file does not exceed 100 yuan / ticket, deal with what have an agreement additionally by the agreement " . Afore-mentioned characters use boldface to add thick.
In front courtyard careful, mr Li weighs Y fast give a company to never had undertaken explanatory demonstrative to its with respect to afore-mentioned clauses, its also were not in " sender signs " office sign. Y fast give a company to advocate its are pulled member come to close when all meet whether does oral inquiry sender need support value.
Flower the court thinks via cognizance, about Y fast give a company " not highest compensation does not exceed support value article 300 yuan / ticket " the issue with whether active clause, y fast give (the detailed information is only) for Y fast give company proper motion to make, this clause belongs to the format clause that absolve or limits its liability. Basis " contract law of People's Republic of China " thirtieth 9 regulation, y fast the provision that passes a company to should adopt logical way to submit to to Mr Li attention is absolved or limit its liability, according to the requirement of Mr Li, give to this clause specification. Mr Li was not in Y fast give (the detailed information is only) " sender signs " one pen sign one's name, y fast give company company to also did not offer other evidence to prove its already adopted logical way to be opposite this clause undertakes demonstrative to Mr Li, reason foundation " contract law of People's Republic of China " the 40th regulation, this clause is invalid. Y fast give a company to should undertake according to the actual loss of Mr Li compensate pays.
About the actual loss of Mr Li. Mr Li cleans out treasure to trade to what the court offers chatting record of sheet of scheme of chatting check scheme, stock up check, replenish onr's stock, small letter, pay treasure to turn Zhang record and clean out treasure to order goods the evidence such as the record has formed complete evidence chain, mr Li has used up the quote obligation that answers to its, enough proves 30964 yuan the value with experience missing and express case is total, y fast give a company to did not offer contrary evidence to give to this refute, the evidence that reason court provides to Mr Li gives collect a letter, the actual loss that confirms Mr Li is 30964 yuan. Mr Li advocates actually border loss is 37238 yuan, but fail to provide evidence of value of other replenish onr's stock, answer to bear consequence of law of corresponding quote incapable to this proper motion by Mr Li.
On put together, flower bilateral evidence and relevant law provide forensic basis, adjudicative Y fast give a company to recoup a loss to Mr Li 30964 yuan.
After first instance is adjudged, y fast give a company to refuse to obey mention appeal, the court decision after classics of court of Guangzhou city intermediate people is tried rejects Y fast the appeal that gives a company, maintain original judgement.
Judge view
In practice, after produce express to lose or marring incident, major express business can urge applicable our country " law of post of People's Republic of China " the 47th the first (2) regulation, according to " do not exceed a collection endowment cost 3 times " undertake compensatory. However, the express business that is not postal company to be engaged in is not business of postal and general service, cannot direct and applicable our country " law of post of People's Republic of China " in the regulation that compensates for about limitation. To what lose not support value express, when express business is assuming damages responsibility, answer by our country " contract law of People's Republic of China " wait for civil law to adjust.
Consumer is in when sending express, fill in express sheet is to need classics measure. Express sheet is offerred by express business, what what narrate in this case often is include to include on its not support value is express and missing, mar the express delivery that how undertakes compensate pays to serve consultative provision, the content of these clauses often exists avoid express company liability, aggravating consumer responsibility, eliminate consumer the case of main right, make consumer dimension authority extremely difficult, must call " clause of Xiang Yu the Conqueror " . But, according to our country " contract law of People's Republic of China " thirtieth 9, the 40th regulation, use format clause to conclude of the contract, the one party that offers format item ought to abide by fair principle to determine the right between party and obligation, adopt logical way to submit to to attention of the other side is absolved or restrict the item of its responsibility, according to the requirement of the other side, give to this clause specification, otherwise this clause is invalid. According to our country " contract law of People's Republic of China " the 312nd regulation, carrier is right of the goods in carriage process mar, destroy break assume damages responsibility; The damage of goods, destroy the compensatory specified amount that lose, party has an agreement, agree according to its; Ambiguous without agreement or agreement, according to consign or ought to the computation of market price case that the goods when consign reachs the ground. Accordingly, if consumer has sufficient evidence to be able to prove what to deliver the goods value that place, although do not have support value, also should win cost price compensation.
Accordingly, the judge warns broad customer, the express business with better reputation should choose when sending express, read express sheet carefully, the clause in the reverse side, understanding concerns compensatory provision, good according to carrying sheet fills in article is relevant information, if express article is belonged to relatively jewel tastes best choice to have support value, save the relevant evidence such as proof of value of good express sheet, goods, the content that always pays close attention to express sheds a circumstance, once happen to express is lost or be marred, should get in touch in time with express business and undertake negotiation, do not talk things over, but according to actual condition to people court to lodge a complaint, so that safeguard the legitimate rights and interests of oneself better.
What be worth to be carried additionally is, the State Council was announced on March 2, 2018 " express is provisional byelaw " , first administrative regulations of industry of this normative express already was carried out formally at rising on May 1, 2018. " express is provisional byelaw " had two-way tie to consumer and express business, requirement user sends express to must undertake real name is registered, the damage to express and missing waited for a phenomenon to also provide compensatory system accordingly, establish the basic standard of express support value, business of specific requirement express and sender decide liability to pay compensation according to support value regulation of the agreement, the enterprise should fill in in sender carry Chan Qianming informs support value regulation truly, allow an enterprise to ask sender is right valuable support value. Fill of this one regulation our country " law of post of People's Republic of China " set the mail support value, blank that did not provide express support value only, it is a country to normative express service industry brand-new breakthrough.
