未成年人盲目追星、打赏主播、沉迷游戏引发的消费充值问题评论

一、未成年人此类问题的法律定性

依据即将生效的民法典第17-20条的规定,“十八周岁以上的自然人为成年人。不满十八周岁的自然人为未成年人。但是十六周岁以上的未成年人,以自己的劳动收入为主要生活来源的,视为完全民事行为能力人。八周岁以上的未成年人为限制民事行为能力人,实施民事法律行为由其法定代理人代理或者经其法定代理人同意、追认;但是,可以独立实施纯获利益的民事法律行为或者与其年龄、智力相适应的民事法律行为。不满八周岁的未成年人为无民事行为能力人,由其法定代理人代理实施民事法律行为。”

未成年人充值、消费在法律上属于合同行为,如果未成年人不满8周岁的,属无民事行为能力人,定立的合同无效;8周岁以上的未成年人签订的合同属于效力待定,其监护人追认的合同有效,但如果监护人拒绝追认,则合同自始至终无效。

  • 现实案例中此类问题的特点
  • 案件隐蔽、监护人不知情

很多案件父母并不知情,有的甚至父母在案发后几个月,需要花钱的时候才发现银行卡或者余额大量减少甚至为0。实践中,一些未成年人在充值后往往删除充值记录及银行通知短信,导致问题发现较晚。然而根据报道,一些互联网公司内部规定充值日期后满180天的不再受理,此类规定一定程度上影响了钱款的及时追回。

  • 充值金额较大

根据媒体报道和法院即判的案例,未成年人充值金额动辄上千,有的甚至高达数十万元。而根据报道,很多家长知情后往往选择沉默不告诉外人,其原因在于他们并不知道该如何诉诸法律,也不知道这些互联网公司对于未成年人消费是否有专门的客服电话或者解决方式。

  • 充值渠道集中,资金流向分散

未成年人的充值方式主要为微信、支付宝、网银和话费,但是购买的服务或者产品却类型众多且分布于多家公司,不限定于一家公司。在同一家公司也是购买至少一种产品或者服务。很多公司根据不同产品和服务设定了不同的返回规则,在同一家公司消费因为产品不同,追回的金额及程序也是不同的。资金流向分散导致追回难度增大、时间增长。

  • 资金追回方式建议
  • 与客服协商优于诉讼

根据目前现行公开的裁判文书,家长起诉获胜的判决相对较少,当然也可能是由于这类诉讼涉及未成年人和家庭隐私问题,导致公开的文书相对较少。但就实际情况而言,进入诉讼程序的案件,家长将面临诉讼费用、时间成本、信息劣势等不利影响,而涉案公司往往有信息优势、证据优势和专业法务人员的团队优势。此外,一些规模较小的公司机构简单,甚至无法联系,由于这些公司分布全国各地,起诉的难度也较大。

2020年5月,最高人民法院制定了《关于依法妥善审理涉新冠肺炎疫情民事案件若干问题的指导意见(二)》(以下称“指导意见二”,对此类问题有了进一步规定。“指导意见二”第9条明确,限制民事行为能力人未经其监护人同意,参与网络付费游戏或者网络直播平台“打赏”等方式支出与其年龄、智力不相适应的款项,监护人请求网络服务提供者返还该款项的,人民法院应予支持。

最高法解释称,“这一规定包括两层意思:一是在适用对象方面,本条规定虽然以未满十八周岁的未成年人为主要对象,但“举重以明轻”,对于不满八周岁的孩子来说,因为他们是无民事行为能力人,所以 不满八周岁的未成年人参与网络游戏

所花费的支出,一律应该退还,这是依法所能得出的当然结论,所以指导意见没有专门规定。二是在支出款项的数额方面,本条规定没有采用‘一刀切’的做法,而是将应予返还的款项限定在与未成年人的年龄、智力不相适应的部分,这一点在具体案件中可以由法官根据孩子所参与的游戏类型、成长环境、家庭经济状况等因素综合判定。”司法解释虽然规定如此,但是现实中有的公司对此有比较完备和系统的应对措施。

有的公司有未成年人充值专门客服电话,家长可以直接与平台客服沟通,表明未成年人充值和家长不知情后,客服人员一般会告诉解决方式、时间和家长需要准备的材料。有的公司会试探家长的追回的决心,在此过程中家长一定要表明有关法律内容,让客服明确自己有关回答的法律后果,自始至终注意录音和保存有关对话截图。举例来说,由于腾讯、阿里巴巴等公司在该问题上经验比较丰富,在核实信息后,基本会退换钱款。因此,通常情况下家长准备材料越充分、追回时间越早,追回可能性和追回金额数量也就越大。

  • 对于协商不成的坚决采用法律手段

对于有的公司坚决不承认未成年人充值的情况,家长应该向对方表明将通过司法程序维护自身利益,并及时联系律师或者法律援助机构。通常很多媒体、消费者保护组织以及政府部门非常关注此类案件,且目前正值清朗行动期间,如果涉案公司知道要起诉后,可能会主动联系寻求解决方案。

  • 家长成功的次数可能只有1

   很多公司规定同一个未成年人只受理一次,这在法律上没有任何规定。但是基于现实情况,家长再次协商或者起诉获胜的难度会陡然增大。暑假到来,家长应做好对子女有关问题的教育工作,并注意保护个人支付密码和银行卡密码。

Comments on the problem of juveniles’ excessive money consumption for adoring stars, tipping to streamers, and addicting to games

  1. The Legal Nature of These Problems

According to Article 17-20 of the Civil Code yet to take effect, the natural persons over the age of 18 are adults. Natural persons under the age of 18 are juveniles. However, the juveniles over the age of 16 that has their own income as their main source of livelihood shall be regarded as persons with full civil capacity for actions. Juveniles over the age of eight are persons with limited civil capacity for actions and shall be represented by their legal representatives or under the consent and ratification of their legal representatives in the execution of civil juristic actions; however, the juveniles over eight may independently perform civil juristic actions that are purely profitable or actions that are compatible with their age and intelligence. Juveniles under the age of eight are persons without civil capacity for actions, and these juveniles’ legal representatives shall represent the juveniles in the execution of civil juristic actions.

Therefore, the contract signed by the juveniles under eight for money spending are invalid; the validity of the contract signed by juveniles over eight is undetermined, and the contract ratified by his custodian is valid. If his custodian refuses to ratify the contract, the contract would be invalid from the very beginning.

  1. The Characteristics of Such Problems in Real Cases
  2. The case is usually concealed, and the guardian is not informed

In many cases, parents didn’t know their children’s excessive money spending. Some parents did not realize that their credit card balances had been greatly reduced or become zero until the parents needed the money in cards, several months after the case had happened. Many juveniles would delete money transaction records and bank notification messages after their excessive money consumption, resulting in the delay of the discovery of these cases. However, some companies stipulate that the appeal on contracts that are signed 180 days before will no longer be accepted. Such provisions affected the timely refund of the money.

  • Large top-up amounts

According to media reports and decided cases by courts, some minors top up several thousand yuan, and some even top up tens of thousands of yuan. And according to media reports, many parents choose to keep silence after finding out. This is because they do not know how to use law to defend their rights, nor do they know whether these internet companies have special customer service and solutions for juveniles’ money consumption.

  • Centralized top-up channels and decentralized money flow

The main top-up methods of juveniles are usually WeChat, Alipay, online banking and telephone charges. However, the services or products purchased by the recharging are diverse and are not limited to one company. Many companies have set different refund regulations for different products and services, and accordingly, the refund amount and procedures differ. The dispersion of money flow increases the difficulty of and the time spent on refunding.

  1. Proposed modalities for financial recovery
  2. Negotiation with customer service is better than litigation

Based on public judgements, there are relatively fewer judgments where parents have prevailed in their lawsuits. But this could be explained by the facts that these cases may involve the privacy of minors and families. But as a matter of facts, parents who enter into litigation will face the negative impacts of litigation costs, time consumption and information disadvantages, and the companies involved often have information advantages, evidentiary advantages, and a team of legal professionals. Moreover, some small companies have simple, if not unreachable, organizations, and it is more difficult to prosecute as these companies are located throughout the country.

In May 2020, the Supreme Court formulated the Guiding Opinions (II) on Several Issues Concerning the Proper Trial of Civil Cases Involving the COVID-19 Pandemic in accordance with Law (“Guiding Opinions II”), which provides further provisions on such issues. “Article 9 of Guiding Opinions II makes it clear that if a person with restricted civil capacity participates in online paid games or rewards the online live streaming platforms without the consent of his or her guardian and spends money that is not commensurate with his or her age or intelligence, the guardian may request the return of the payment, and the Supreme Court shall support it.

The Supreme Court explained that “this provision has two meanings: first, in terms of the target audience, although this provision is mainly applied to minors under the age of eighteen, minors under eight years old are persons incapable of civil actions, hence it is a natural conclusion that all expenses incurred by minors under the age of eight years in participating in online games should be refunded, and therefore no specific provision is made in the Guiding Opinion. Second, with regard to the amount of the expenses, this provision does not adopt a “one-size-fits-all” approach, but limits the refundable amount to those incompatible with the minor’s age and intelligence. This can be evaluated comprehensively by judges in a specific case based on factors such as the type of games the child participates in, the growth environment, and the family economic status. Although the judicial interpretation stipulates as such, in reality, some companies have relatively complete and systematic responses to this.

Some companies have a special customer service phone number for minors to top up, parents can communicate directly with the platform’s customer service, indicating that the minors’ top-up lacks parental consent. The customer service staff will usually inform the solution, time and materials needed. Some companies will test the parent’s determination to get refund, in this process parents must indicate the relevant legal contents, and let the customer service clarify the legal consequences of their relevant answers. Pay attention to save the recordings and screenshots of the dialogue throughout the process. As Tencent and Alibaba Group are more experienced at this issue, after verification, they will refund the money. Thus, the better prepared of the materials and the earlier appeal for refund, the greater the possibility  and amount of refund is.

  • Resolutely use legal means if the negotiation fails.

In cases where the companies deny the situation of minors’ topping up, parents should express their will to resort to judicial procedure to the opposing party, and contact an attorney or legal aid department in a timely manner. Usually many media, consumer protection organizations and government departments are very interested in such cases. Especially now when the Operation Clean Sweep is going on, if the company involved knows that the parents are going to sue, it may actively contact the parents to resolve the case.

  • Parents may only be successful 1 time

Many companies stipulate that the case of the same minor will be accepted only once, which is not stipulated by law in any way. But based on reality, it can be steeply more difficult for parents to negotiate again or win a lawsuit. As summer vacation approaches, parents should do their best to educate their children about the issues and be sure to protect the personal payment and bank card passwords.

作者:何俊成  编辑:孙佳慧  翻译:李笑然 任书仪

0 中国人大网:《中华人民共和国民法典》,http://www.npc.gov.cn/npc/c30834/202006/75ba6483b8344591abd07917e1d25cc8.shtml,2020年7月24日.

1 最高人民法院:《关于依法妥善审理涉新冠肺炎疫情民事案件若干问题的指导意见(二)》,http://cicc.court.gov.cn/html/1/218/62/84/1582.html,2020年7月24日。

推荐阅读

发表评论