[Legal Life] Ch15 Chicken Essence Turned Clam Essence: What Should We Pay Attention to in Online Shopping?

After recovering from the foot injury sustained in a traffic accident, Chieh-Yun still frequently recalled various scenes from the accident. She also kept thinking about the figure of the old grandmother's husband she had seen at the emergency room, sobbing with his head bowed in a chair, and wondered how the old gentleman was doing now. Filled with a sense of justice, Chieh-Yun immediately resolved to visit the old gentleman and pay her respects to the late grandmother, which would also bring closure to a matter on her mind. Being a woman of action, Chieh-Yun promptly purchased a well-known brand of chicken essence online to bring to the old gentleman. To her surprise, when she opened the package upon delivery, the "chicken essence had turned into clam essence." A distressed Chieh-Yun suddenly had no idea what to do....

The rapid development of the internet has made it an indispensable part of daily life. It has not only transformed traditional transaction models but also made the legal relationships involved increasingly complex. Although the Consumer Protection Act incorporates online transactions into the scope of communication transactions, as new transaction types constantly emerge, we as consumers must still keep a close eye on these changes and continuously update our information in order to protect our rights.

First, let's understand what a consumer and the Consumer Protection Act are: Lung Chien-Yu | Save Your Own Rights—The Consumer Protection Act and Product Liability

What is online shopping?

Online shopping is actually a type of e-commerce, which utilizes the internet as a channel for concluding sales contracts. In other words, it involves parties using internet mediums to complete the offers and acceptances required for a sales contract, thereby establishing the contract. What then is e-commerce? Scholars in our country have explained it as follows: e-commerce refers to commercial activities conducted via the internet, including commodity transactions, advertising, services, information provision, financial remittances, market intelligence, telecommunications, and the sale of event programs, etc.^[1]

In current online transactions, most webpages are pre-written by providers who clearly stipulate the contract terms and then set them up on a website for consumers to choose and purchase. This unilaterally predetermined transaction model is fundamentally the same as the "standardized contract" stipulated in the Consumer Protection Act. Therefore, most scholars believe that the provisions concerning "standardized contracts" in the Consumer Protection Act can be applied to various standardized contracts appearing on the internet. According to the provisions of our country's Consumer Protection Act, if a standardized contract term is to become part of the parties' contract, the party drafting the contract must clearly present the term to the counterparty, allowing the counterparty a reasonable amount of time and opportunity to understand the contents of the term, so that they can calmly decide whether to agree to make the term part of the contract content and thereby complete the transaction behavior.

According to Article 11 of the Consumer Protection Act: "Terms used by a business operator in a standardized contract shall be based on the principle of equality and reciprocity. If there is any ambiguity in a standardized contract, it shall be interpreted in favor of the consumer." Meanwhile, Article 12 also stipulates that "Terms in a standardized contract that violate the principle of good faith and are manifestly unfair to the consumer shall be null and void." Paragraph 2 of Article 12 further enumerates three circumstances that are presumed to be manifestly unfair: "(1) Violating the principle of equality and reciprocity; (2) Terms that clearly contradict the legislative intent of the mandatory or prohibitory provisions they exclude from application; (3) The main rights or obligations of the contract are restricted by terms, making the purpose of the contract difficult to achieve."

In addition, when online shopping operators recently provide "purchasing agents" services for consumers, the Consumer Protection Act also applies. When online shopping operators sell goods through webpages or blogs, as long as their business is the distribution of goods or provision of services—regardless of whether they make a profit—they qualify as "business operators" under the Consumer Protection Act. Even if online shopping operators merely act as "purchasing agents" for consumers, this still constitutes a business operation providing services through the provision of labor, and the Consumer Protection Act will naturally apply.

However, if someone living abroad simply helps a friend purchase goods on a commission basis, should they also be considered a business operator? In such cases, it must be further determined whether your entrusted purchasing activity is merely a one-off or occasional event rather than a business of providing purchasing agent services. If it is merely an occasional favor among friends, you will not be a "business operator" under the Consumer Protection Act. Therefore, if a dispute arises, the Consumer Protection Act does not apply; instead, it should be handled in accordance with general civil law provisions regarding agency or commission.

Under what circumstances does a situation constitute a consumer dispute?

According to Article 2, Subparagraph 4 of the Consumer Protection Act, a consumer dispute refers to a dispute arising from goods or services between a consumer and a business operator. In other words, consumer disputes are limited to disputes between consumers and business operators (commonly known as B2C). If a dispute occurs between business operators (B2B) or between consumers (C2C), it does not fall within the scope of a consumer dispute.

Furthermore, consumer disputes are strictly limited to disputes arising from goods or services between consumers and business operators, and do not include other disputes. For example, if a consumer files a complaint against a business operator due to the poor quality of the operator's goods or services before a consumer relationship relating to those goods or services has even been established, because no consumer relationship exists, it does not fall within the scope of a consumer dispute as defined by this Act.

What should you do when encountering a consumer dispute?

When a consumer dispute occurs, in accordance with the provisions of the Consumer Protection Act, consumers may choose either one or both of the following administrative or judicial avenues to seek the best resolution:

1. Administrative Resolution

   In sequential order, this involves lodging a complaint followed by mediation. Pursuant to Article 43 of the Consumer Protection Act, consumers have two successive opportunities to file a complaint. For the first complaint, consumers may choose to file with any institution or unit, such as the business operator, a consumer protection organization, or the consumer service center and its branch centers of a municipality or county (city). If a proper response or resolution is not obtained during the first complaint, the consumer may file a complaint with the consumer protection officer at their location. If neither complaint yields a satisfactory resolution, pursuant to Article 44 of the Consumer Protection Act, the consumer may apply for mediation with the Consumer Dispute Mediation Committee of the municipality or county (city) government.

2. Judicial Resolution

   In addition to administrative resolutions, consumers may also adopt judicial resolution methods in accordance with Articles 47 to 55 of the Consumer Protection Act by initiating a consumer lawsuit. The aforementioned administrative resolution in (1) is not a prerequisite procedure for judicial resolution; there is no sequential order between the two, and consumers may arbitrarily choose either one or pursue both simultaneously.

How can consumers assert their rights in the event of product defects resulting from online shopping?

If you discover that the delivered product is defective, you should first contact the vendor for a return or exchange via the customer service telephone number or email address provided on the website. Pursuant to Article 354 of the Civil Code: "A seller of goods shall warrant to the buyer that, at the time the risk of the goods is transferred to the buyer pursuant to the provisions of Article 373, the goods are free from defects which destroy or diminish their value, or destroy or diminish their ordinary utility or the utility anticipated under the contract." Therefore, vendors bear the warranty liability for defects in the goods they sell.

In addition, after making a credit card payment for online shopping, the issuing bank will not accept a consumer's application to suspend payment due to a defect dispute between the consumer and the vendor. Therefore, consumers must be exceptionally cautious before making credit card payments. However, online shopping remains, by nature, a "communication transaction" as provided for in our country's Consumer Protection Act. According to Article 19 of the Consumer Protection Act, after making a credit card payment for online shopping, consumers may, within seven days starting from the day after receiving the goods, rescind the sales contract by returning the goods or giving written notice to the vendor, and request a refund of the payment made by credit card, without needing to state any reasons or bear any expenses or consideration.

However, because the internet is borderless, if consumers purchase goods from foreign websites, they may encounter various difficulties in the refund process, and the situations stipulated by our country's laws may not necessarily apply. Therefore, before making a credit card payment, it is best to first understand whether the online transaction counterpart is a domestic operator to avoid finding oneself with no recourse for compensation.

When a product defect occurs, consumers may exercise their right to claim compensation. There are two channels for seeking compensation:

1. Compensation under Civil Law

   Product defects under civil law can be divided into warranty for defects in rights and warranty for defects in things based on the type of defect. The former refers to defects in the rights pertaining to the subject matter of the sale; for example, if you buy a car, the seller must ensure that someone named A will not suddenly appear one day and claim the car belongs to them. If such a situation truly occurs, you may claim damages based on "non-performance of obligations" pursuant to Articles 349 to 353 of the Civil Code. The latter refers to defects in the subject matter of the sale itself; for instance, if you buy a mobile phone that refuses to turn on, you may handle the matter by rescinding the contract, reducing the purchase price, providing goods of the same kind, or claiming damages for non-performance pursuant to Articles 354 to 366 of the Civil Code (though remember to inspect the item and assert your claims as soon as possible upon receipt).

2. Compensation under the Consumer Protection Act

   The Executive Yuan's Consumer Protection Committee holds that the legal nature of online e-commerce constitutes a "communication transaction" as defined by our country's Consumer Protection Act, and therefore relevant provisions of the Consumer Protection Act apply. According to the Consumer Protection Act, online consumers who are unwilling to purchase the goods they have received may return the goods within seven days of receipt, or notify the business operator in writing to rescind the sales contract, without needing to state any reasons or bear any expenses or prices. If you discover that the product is defective only after seven days have passed since receiving it, although the unconditional right to return provided by the Consumer Protection Act is lost after seven days, you may still request a price reduction or rescind the contract depending on the circumstances pursuant to the aforementioned civil law provisions in (1).

Can business operators stipulate on their websites that "no 7-day unconditional return is provided"?

According to the "Guidelines on the Application of Reasonable Exceptions to the Right of Rescission in Communication Transactions" promulgated by the Executive Yuan's Consumer Protection Committee, which took effect on January 1, 2016, the guidelines stipulate reasonable exceptions where the provisions of the former part of Paragraph 1 of Article 19 of the Consumer Protection Act do not apply to certain goods or services of a special nature, thereby balancing the rights and interests of business operators and consumers. Simply put, it dictates that certain special goods are exempt from the 7-day unconditional return policy, as briefly explained below:

1. Goods prone to spoilage, with a short shelf life, or about to expire upon rescission: Due to their propensity to rapidly deteriorate and spoil, having a shelf life of less than seven days, or being near expiration even if slightly longer than seven days, they are unsuitable for resale after being returned. Therefore, you cannot order a pizza and then claim your dad is hungry but you are not, so you don't want it anymore.
2. Customized supplies made in accordance with consumer requirements: For example, goods printed according to photos provided by consumers, seals carved per consumer instructions, or clothing specially tailored to a consumer's measurements. However, if a consumer merely specifies or selects from existing colors or specifications, it does not constitute customized supplies under this subparagraph.
3. Newspapers, periodicals, or magazines: Such publications possess timeliness, making them difficult to sell after time has passed.
4. Audiovisual products or computer software unsealed by the consumer: Audiovisual products or computer software provided via tangible media enter a replicable state once unsealed, making them difficult to return by nature. You cannot finish watching a movie and then return it!
5. Digital content not provided via tangible media or online services completed upon provision, provided with the consumer's prior consent: Digital content not provided via tangible media (e.g., e-books) or online services completed immediately upon provision (e.g., online virus scanning, fund transfers, or remittances). If such contracts begin execution with the consumer's prior consent, because they are fulfilled immediately upon download or instant provision of the service, they are difficult to return by nature and are thus specially designated as reasonable exceptions.
6. Unsealed personal hygiene items: Goods sealed for hygiene considerations (e.g., underwear, underpants, or shavers). If such goods are unsealed, inspected, tried on (or used), and then resold, it would simply be too gross!
7. International air passenger transport services: International air passenger transport services are part of a globalized industry involving cooperative relationships among international peers, such as code-sharing and alliances, and cannot be canceled arbitrarily. Moreover, international air passenger transport services require fully informing passengers of ticket usage restrictions. Therefore, international air passenger transport services are classified as reasonable exceptions and are subject to relevant regulations such as those filed with the competent authority.

What can I do if I still do not understand or wish to seek further related services?

If consumers have any consumer issues to consult about, they can call the "1950" national consumer service hotline (which directly transfers callers to the consumer service center of the county or city government where they are located), the Executive Yuan Consumer Protection Center service hotline, or the contact numbers of the service windows of various central competent authorities. These telephone numbers and service addresses can be queried by clicking on "Consultation Windows" on the Executive Yuan Consumer Protection Committee website.

Furthermore, the Executive Yuan Consumer Protection Center also employs consumer protection volunteers and pro bono lawyers to provide consultation services. The service hotlines are: (02) 33567706, (02) 33567707, (02) 33567708. Consumers may also visit the Consumer Center in person (Entrance at No. 2, Tianjin St., Taipei City) for inquiries. Consumer protection volunteer service hours are from 9:00 AM to 5:00 PM on every working morning. Pro bono lawyers operate on an appointment-only basis, with service hours from 2:00 PM to 5:00 PM on Tuesday and Friday afternoons of every working week.

Relevant Legal Provisions

Consumer Protection Act
Article 2, Subparagraph 7:
7. Standardized contract terms: Mean contract terms pre-drafted by a business operator for the purpose of concluding identical contracts with a majority of consumers. Standardized contract terms are not limited to written forms, and those expressed through projected subtitles, postings, placards, the internet, or other methods shall also apply.

Article 2, Subparagraph 10:
10. Communication transaction: Means a contract concluded between a business operator and a consumer via broadcasting, television, telephone, facsimile, catalogs, newspapers, magazines, the internet, flyers, or other similar methods, where the consumer is unable to inspect the goods or services prior to conclusion.

Article 18:
I. When concluding a contract through a communication transaction or visiting transaction, a business operator shall state the following information in clear and easily understandable language in writing and provide it to the consumer:
1. The name, representative, office or business location, and telephone number or email address and other contact information through which the consumer can promptly and effectively contact the business operator.
2. The content, consideration, payment due date and method, and delivery date and method of the goods or services.
3. The time limit and method for the consumer to exercise the rescission of the contract pursuant to Article 19.
4. The exclusion of the application of the right of rescission under Paragraph 1 of Article 19 pursuant to Paragraph 2 of Article 19 for the goods or services.
5. The acceptance method for consumer complaints.
6. Other matters announced by the central competent authority.
II. For communication transactions conducted via the internet, the information that must be provided pursuant to the preceding paragraph shall be in an electronic format that allows the consumer to completely review and store it.

Article 19:
I. A consumer who has entered into a communication transaction or visiting transaction may rescind the contract by returning the goods or giving written notice within seven days after receiving the goods or accepting the services, without needing to state any reasons or bear any expenses or consideration.
II. However, this shall not apply where a communication transaction is subject to reasonable exceptions.
III. The reasonable exceptions referred to in the proviso of the preceding paragraph shall be prescribed by the Executive Yuan.
IV. If a business operator fails to provide the consumer with information regarding the rescission of the contract in accordance with Article 18, Paragraph 1, Subparagraph 3 at the time the consumer receives the goods or accepts the services, the seven-day period referred to in Paragraph 1 shall be calculated starting from the day after such information is provided. However, if four months have elapsed since the commencement of the seven-day period referred to in Paragraph 1, the right of rescission shall be extinguished.
V. If the consumer has shipped the goods or dispatched the written notice within the period prescribed in Paragraph 1 and Paragraph 3, the contract shall be deemed to have been rescinded.
VI. Agreements made in violation of the provisions of this Article in a communication transaction or visiting transaction shall be null and void.

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Footnotes

1. Feng Chen-Yu, Discussion on the Development of Internet E-Commerce and Related Legal Issues (Part 1), Taiwan Law Review, Issue 36, May 1998, p. 72