Legal analysis of sharing bicycle deposits

First, the legal nature of the deposit

 

1. The deposit does not belong to the movable property pledge guarantee as stipulated in the Guarantee Law and the Property Law.

In market transactions, deposits are generally used in large quantities in lease contracts. For the purpose of guarantee contract performance, the lessor collects a deposit of a certain amount from the lessee. In real estate leasing, the deposit is to guarantee the tenant to pay the rent in full and on time; in the movable property leasing, a deposit is charged in order to guarantee the tenant to return the leased property in time.

Then, does the deposit belong to the movable property pledge guarantee as stipulated in the Guarantee Law and the Property Law? Is the legal requirement for movable property pledge applicable?

Article 63 of the Guarantee Law and Article 208 of the Property Law stipulate that the pledge of movable property refers to the performance of the secured debt, and the debtor or a third party transfers its movable property to the creditor’s possession, and the movable property is used as the creditor’s right. In the case of a guarantee, if the debtor fails to perform the debt or if the parties agree to realize the pledge, the creditor has the right to preferentially compensate the movable property according to law.

Both the mortgage guarantee and the pledge guarantee are a form of guarantee, and neither transfer the ownership of the collateral/pledge; the main difference between the mortgage guarantee and the pledge guarantee is that the mortgage guarantee is generally registered as effective or confrontational requirements. Transfer possession, and pledge guarantees take transfer possession as the effective requirement. In short, with regard to movable property pledge guarantees, one of the most basic rules is that the pledgee’s ownership of its movable property does not transfer, but the possession is transferred to the pledgee. Since the ownership has not been transferred, the powers of use, income and disposal are still owned by the pledgee except for possession (the pledgee has the right to receive the suffocation of the pledge property as stipulated in Article 213 of the Property Law). except).

Money (currency) is also a movable property, but it is a special movable property. It is a highly replaceable property, or a general equivalent. Its possession and ownership are combined into one. The currency occupant is regarded as the currency owner and the currency is entitled. The transfer also means the transfer of ownership. Therefore, the so-called "borrowing money" borrows money ownership, not money.

Therefore, the use of money (currency) as a pledge guarantee is completely different from other ordinary movable property. China's "Guarantee Law" and "Property Law" have no specific provisions. Despite this, in commercial activities, especially financial business, there are a large number of actual operations of money pledge guarantees such as “letter of credit issuing guarantee” and “bank acceptance bill guarantee”. Under this circumstance, the Supreme People's Court successively issued judicial interpretations and guiding cases to regulate the pledge guarantee of money (currency).

Article 85 of the Supreme People's Court's Provisions on Whether the People's Court Can Take Freeze and Deduction Measures for the Issuance of Letters of Credit for the Licence and the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Guarantee Law of the People's Republic of China In the Supreme People's Court's Guiding Case No. 54 “China Agricultural Development Bank Anhui Branch v. Zhang Dabiao, Anhui Changjiang Finance Guarantee Group Co., Ltd. to enforce the objection dispute case”, we can summarize the money (currency) pledge guarantee Requirements: (1) the pledgee does not transfer the ownership of the currency; (2) the currency providing the guarantee is specified by means of account number and control, and is separated from other currencies of the pledgee; (3) the pledgee through certain means The currency providing the pledge guarantee is occupied, managed or controlled.

In the two relative ratios, we can draw a clear conclusion. The deposit in the lease contract, the lessor has not taken measures to specify and segregate the deposit, does not meet the requirements of the movable property pledge guarantee, and does not belong to the "Guarantee Law" and "Property Law". The provisions of the Guarantee Law and the Property Law are not applicable to the pledge guarantees for movable assets.

2. We believe that the deposit belongs to an unnamed guarantee method produced according to the contractual agreement between the two parties. After the lessee delivers the deposit to the lessor, the ownership of the deposit is transferred, and the lessor has the right to possess, use and earn the deposit. And the punishment, of course, the lessor also needs to return the deposit in time according to the agreement of both parties.

 

Second, the leasing platform collects and returns the deposit rules and the legality analysis of the profit model

As mentioned above, it is a reasonable practice to collect a certain amount of deposit in the lease contract as a guarantee for the performance of the contract. However, judging from the reasonableness, the amount of the deposit should be equal to the amount guaranteed. If the purpose of the deposit is to guarantee the payment of the rent, the amount should be equal to the rent. For example, the deposit for the house lease contract is generally one to three months' rent; if the purpose of the deposit is to guarantee the return of the lease, the deposit The amount should be equivalent to the lease item. For example, the deposit for a vehicle lease is generally equivalent to the value of the vehicle.

According to the above analysis, whether it is a shared bicycle or a shared electric vehicle rental, it is not unreasonable for the lessor to charge a deposit equivalent to the value of the vehicle. However, the problem is that since the function of the deposit is to guarantee the return of the vehicle, the lessor should return the deposit in a timely or immediate manner after the lessee has completed the ride and return the vehicle, rather than having to go through the tenant to initiate the application or even after a certain period of time. Return it again.

Regardless of whether it is a shared bicycle or an electric vehicle rental platform, the profit model of the deposit is nothing more than taking a large deposit from the customer, and then investing or managing money, and profiting from the capital gains, but there are two legal risk points in this profit model. : (1) The deposit charged according to the value of the vehicle shall be promptly returned after the customer returns the vehicle, instead of requiring the customer to initiate the application after a certain period of time and return; the overlord clause in the format contract of the rental platform is in violation of the contract. The Law and the Consumer Protection Law stipulate that consumers can sue for the court to confirm invalidity. The Consumer Rights Protection Association, as an official rights protection organization, can also initiate public interest litigation and claim rights on behalf of consumers. (2) If the platform continues to occupy the deposit and the reason for the non-refundable return is not the return of the secured rental vehicle, but the rental service provided by the platform, it is obvious that the amount of the deposit does not match the value of the service provided by the platform, and it is also free of the platform. The promotion or commitment to provide services, based on the provisions of the Contract Law and the Consumer Protection Act, may also be considered invalid.