China Mobile demands a penalty of 162000 yuan for breach of contract!, User applies for "Jixiang" account transfer to Jilin | Reporter | Account transfer

Recently, Li Bing, a villager from Fangfang Village, Yushutai Town, Lishu County, Jilin Province, reported to the Jilin Journalist Station of China Consumer News that when he applied to the Siping Branch of China Mobile Communications Group Jilin Co., Ltd. for number portability, he was told to pay a penalty of 162000 yuan for breach of contract, otherwise he could not transfer the number to the network.

Journalist investigation found that

Li Bing's experience is not an exception

Many users have been restricted when transferring their accounts to the internet

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"Ji Xiang Hao" is being charged for breach of contract for network transfer

User questioning

The agreement is suspected of being a "domineering clause"

Li Bing told the China Consumer Daily reporter that on March 8th this year, he signed a "Customer Access Service Agreement" and a "Supplementary Agreement for the Access of Auspicious Numbers" with Jilin Mobile Siping Branch, and obtained the right to use the mobile phone number "1513442 xxxxxx". Due to poor service from the operator and poor signal flow, he applied to Jilin Mobile Siping Branch to transfer his number to China Unicom, but was refused. The reason for the mobile aspect is that Li Bing has signed an agreement that must be used online for 20 years. If he wants to switch networks, he must pay a penalty of 162000 yuan for breach of contract.

Jilin Mobile Siping Branch. Li Hongtao/Photo

Li Bing believes that the actions of Mobile Siping Branch have no legal basis, and the company uses standard terms in the agreement to bind users, which is suspected of being a "domineering clause".

The reporter saw in the "Supplementary Agreement for Accessing the Jixiang Number" provided by Li Bing that there are clauses in the agreement that stipulate "the Jixiang number chosen by Party A to access the network is 1513442 XX XX, and the contract period is 20 years", "Party A promises to pay a minimum consumption of 698 yuan per month for the Jixiang number, which is valid for 20 years", and "If Party A violates the agreement, it shall compensate Party B for losses, with the compensation amount=monthly minimum consumption amount x unfulfilled period x 95%".

The reporter noticed that in the agreement signed between Li Bing and Jilin Mobile Siping Branch, there was no clear agreement between the two parties regarding the transfer of numbers to the internet.

According to the "Regulations on the Management of Number Carrying and Network Transferring Services", telecommunications operators are strictly prohibited from providing number carrying and network transferring services.

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"Auspicious Number" and "Beautiful Number" Lead to Disputes

Three major operators responded

The compensation standard is determined by the user agreement

A reporter from China Consumer Daily found through investigation that in recent years, there have been many disputes over account portability caused by "auspicious" and "beautiful" accounts in Hubei, Jiangsu, Beijing and other places.

From consumer complaints:

Some number portability to the internet is hindered due to the unexpired agreement signed when accessing the network, and the operator proposes to terminate the contract in advance and pay a high penalty for breach of contract;

Some users only realize that they are a "good account" when switching to the internet, and are restricted by the "good account" agreement without their knowledge.

Recently, the reporter consulted the customer service of three major communication operators as a user, and the customer service representatives all stated that users of "Jixiang Hao" and "Lianghao Hao" do not need to wait until the contract expires to transfer their numbers to the network, but they need to pay a penalty to terminate the agreement, and the compensation standard is determined by the user agreement.

The reporter learned that the "Management Measures for Telecommunications Network Code Number Resources" stipulate that after the code number applicant is allowed to use the code number resources, the telecommunications regulatory department can allocate the code number through methods such as allocation, random selection, and auction. After obtaining the right to use code numbers, telecommunications operators shall not charge users selection fees or occupancy fees. As a result, the buying and selling of the "auspicious ship" was explicitly prohibited.

That is to say, currently the country does not recognize the value of the mobile phone "Jixiang Hao" itself. However, telecom operators have played a sideline role in their operations, selecting so-called "auspicious numbers" from the approved code number resources and binding them with monthly minimum consumption packages of hundreds or thousands of yuan. Once the user chooses the "Lucky Account", they will need to sign a "minimum monthly consumption" and a long-term online agreement that varies from several years. In case of any changes, the user will face the risk of breach of contract and be charged high liquidated damages.

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Setting thresholds is not advisable

Experts say that

If the user is not informed, they have the right to claim that the terms are invalid

Is the ultra long online protocol signed by "Jixiang" legal? Is it reasonable to make special requirements for similar number portability and network transfer?

Lawyer Wu Xiuyan from Jilin Chuangyi Law Firm stated that in the above-mentioned dispute, Jilin Mobile Siping Branch's claim for liquidated damages from user Li Bing was based on two agreements signed by both parties. The terms regarding online duration and breach of contract in the agreements are legal in principle and should be considered as valid contracts. But both agreements belong to standard contracts, and the terms inside are also standard terms. Telecom operators should provide specific requirements for standard terms in accordance with laws and regulations, and provide reminders or explanations on matters that have significant interests with users, fulfilling the obligation of disclosure. Otherwise, users have the right to claim that the major penalty clause is invalid.

Professor Liu Junhai from the Law School of Renmin University of China believes that signing contracts between users and telecommunications operators on a voluntary and equal basis may appear to be a form of contractual freedom, but in essence, it does not conform to the spirit of contractual freedom. This is because the contract was unilaterally drafted by the merchant and belongs to the format text. According to the spirit of the contract, the content of the contract should have been jointly drafted by the user and the merchant. When the merchant drafts the contract on behalf of the consumer in the form of standard terms, the consumer's right to choose should be considered.

Regarding how operators can fulfill their reminder obligations in practice, Liu Junhai said that reminders include both verbal and written reminders. If verbal reminders are used, it is best to confirm them by signing. If there is a disagreement between the two parties regarding whether they have reminded, the party claiming to have reminded shall bear the burden of proof. If they cannot prove that they have fulfilled the obligation of reminding, they shall bear the legal consequences of providing evidence.

Li Bing told reporters that operators should have relied on high-quality services to retain users, but Jilin Mobile Siping Branch has used "domineering clauses" to retain users, which is not an acceptable method. We hope that the operator can provide a public solution for the portability of the "Jixiang" account, without setting any barriers, but actively providing assistance to users.

The China Consumer News will continue to pay attention to this matter.

Journalist's Notes

Enterprises are the primary responsible persons for consumer rights protection. It may seem understandable and natural for telecommunications operators to claim liquidated damages when users apply for number portability, but what is the value of the so-called "auspicious number" for mobile phones? What is the compensation standard? These issues are worth considering and discussing. Compared to mobile phone numbers priced at tens of yuan or even tens of yuan per month, mobile phone numbers that have been dubbed "auspicious" by telecom operators have taken the world by leaps and bounds, often selling for tens of thousands or even hundreds of thousands of yuan in the past. Nowadays, in order to avoid regulation, telecom operators cater to the consumption psychology of a small number of users and sell monthly minimum consumption packages with high binding amounts for such numbers. By using the format terms of the agreement, they add "insurance" to the profits of the enterprise. In fact, these so-called "auspicious numbers" are no different from other mobile phone numbers in providing telecommunications services to users.

Justice is at the mercy of the heart. Users have the right to choose their mobile phone number, and choosing an "auspicious number" has its own consumption standards and considerations. It cannot be interpreted as "Zhou Yu's yellow hat, one willing to fight, one willing to fight". The reason why users apply for account portability is that companies should examine their own problems in terms of quality, price, and service, and strive to improve their competitiveness. They should use product and service improvements to retain consumers, rather than setting up agencies to forcibly target them. The operator's one clause "kidnapping" users appears unsightly. In the face of a fiercely competitive market environment, providing good service, improving reputation, and satisfying users are the key to winning for telecommunications enterprises. At the same time, the communication operation management department should also strengthen industry management and market inspections, truly enabling policies and measures to protect consumer rights to take root.