Legal Research on Membership Cards Issued by Hotels and Scenic Spots
Author: Li Huahong
One.background
All kinds of membership cards, memberships, gift certificates, etc. are already consumer certificates that people are accustomed to in their lives, but what legal risks are involved in the issuance process? How should we design the issuance plan for specific industries, such as hotels and scenic spots?
In the process of providing legal services to a corporate client, the corporate client intends to issue a VIP pass card or similar membership card with a denomination of 5,000 yuan, 10,000 yuan, 50,000 yuan in the name of the group. The group operates a boutique hotel and several surrounding scenic spots, including but not limited to yacht clubs, seaplane clubs, wine estates and other formats.
In order to ensure the legality and compliance of the membership card issuance, the author makes an in-depth analysis of the relevant laws and regulations in the process of membership card issuance.
Second, the legal nature of the VIP pass card
In recent years, in various industries such as golf courses, fitness, elderly care, supermarkets, beauty salons, etc., the consumption model of membership cards has become a customary and common model. The nature of membership cards is the prepaid consumption model, that is, consumers pay a certain amount in advance to the operator, and after receiving services or products in accordance with the contract (including the actual contract), the issuer or operator directly deducts the corresponding amount from the prepaid payment. The consumption model is usually based on the prepaid consumption card (membership card) as a certificate.
This kind of prepaid consumer card (membership card) is defined as a commercial prepaid card in relevant regulations.
In the prepaid card consumption model, the legal relationship between the cardholder and the issuer should be regarded as a contractual legal relationship. Consumers pay a fee to the seller first, and then enjoy multiple and continuous consumption of goods or services provided by the issuer or designated operator within a certain period of time. The existence of the prepaid card indicates that consumers enjoy the right to require the operator to provide them with the agreed goods or services within a certain period of time, so it is a certificate of authorization.
The VIP card to be issued by the group meets the above consumption pattern of paying a certain amount in advance, and then obtaining products or services in accordance with the contract or membership articles, and the operator directly deducts the corresponding amount from the advance payment. Therefore, the process of issuing VIP cards shall abide by the "Measures for the Administration of Single-Purpose Commercial Prepaid Cards" and relevant regulations.
Single-purpose commercial prepaid card is a redemption certificate issued by an enterprise for business or services, but it also has financial attributes such as financing and fund-raising. Therefore, the group should follow relevant regulations and avoid relevant risks such as illegal fund-raising in the process of issuing VIP pass cards.
Three, the current relevant provisions of our country's prepaid card
(1) Provisions on prepaid consumption contracts
The laws of our country have special expressions on the consumption method of commercial advance payment. Article 53 of the Consumer Rights Protection Law stipulates that "If an operator provides goods or services in the form of advance payment, it shall provide them in accordance with the agreement. If it is not provided in accordance with the agreement, it shall fulfill the agreement or return the advance payment according to the requirements of the consumer; and shall bear the interest on the advance payment and the reasonable expenses that the consumer must pay.
"This is the direct regulation of the prepaid consumption method in our country's laws. However, there are no legal regulations on the use of commercial prepaid cards, legal supervision, consumer rights protection and remedies.
(2) Provisions on commercial prepaid cards
On September 21, 2012, the Ministry of Commerce issued the "Administrative Measures for Single-Purpose Commercial Prepaid Cards (Trial Implementation) " (Order No. 9 of the Ministry of Commerce in 2012, hereinafter referred to as the "Administrative Measures"), which will be implemented on November 1, 2012 and revised in August 2016. The person in charge of the Department of Market Order of the Ministry of Commerce interpreted the background, guiding principles and main contents of the "Administrative Measures" as follows:
1. Single Purpose Card Definition
The "Administrative Measures" clarify the definition of a single-purpose commercial prepaid card, namely: "The single-purpose commercial prepaid card (hereinafter referred to as a single-purpose card) as mentioned in these Measures refers to the prepaid certificate issued by the enterprise specified in the preceding paragraph, which is limited to the payment of goods or services within the enterprise or the group to which the enterprise belongs or the same brand concession system, including physical cards with magnetic stripe cards, chip cards, paper coupons, etc. as carriers and virtual cards with passwords, serial codes, graphics, biometric information, etc. as carriers."
It includes four aspects: First, the issuer is an enterprise engaged in a specific industry.That is, engaged in retail, accommodation and catering, and residential servicesThe second is that the use is limited to the scope of use, that is, within the enterprise or the group to which the enterprise belongs or the same brand concession system; the third is to clarify that it is a kind of prepaid certificate that can be used to pay for goods or services; the fourth is that the form is not limited to the carrier, including physical cards and virtual cards.
Remarks: Resident services include nine industries, including family services, nurseries, washing and dyeing services, haircut and beauty care services, bath services, marriage services, funeral services, photography and printing services, and other resident services.
2. Scope of application
In real life, there are many industries involved in issuing single-purpose commercial prepaid cards. However, according to the industry management responsibilities of the Ministry of Commerce, the "Administrative Measures" include card issuers in the retail, accommodation and catering industries in the scope of application, and the applicable industry classification list is attached to the "Administrative Measures".
In industries outside the classification table, this "Administrative Measures" does not apply. At the same time, in order to refine the management, the "Administrative Measures" divide the card issuing enterprises into large-scale card issuing enterprises, group card issuing enterprises, brand card issuing enterprises and other card issuing enterprises in detail.
3. Filing system
In order to further ensure the legitimacy of card issuance and prevent illegal and criminal acts, according to the principles of territorial management and classified supervision, the "Administrative Measures" clarify the filing time limit, filing authority, materials to be provided and filing changes for various card issuers. For large-scale card issuers, brand card issuers and group card issuers, they are required to provide information such as financial status so that the filing authority can conduct risk monitoring; for other card issuers, the "Administrative Measures" simplify their filing procedures.
The "Administrative Measures" also provide that card issuers that have filed can indicate the filing number on the single-purpose card issued.
4. Three systems
The "Administrative Measures" institutionalized the "real-name purchase card system", "non-cash purchase card system", and "limited purchase card system" proposed in the State Office Document No. 25.The "Administrative Measures" stipulates that individuals or units who purchase recharge registration cards, or who purchase bearer cards of more than 10,000 yuan (inclusive) at one time, should purchase cards with real names.
If the amount of a single-purpose card purchased by a unit at one time reaches 5,000 yuan (inclusive) or more or the amount of a single-use card purchased by an individual at one time reaches 50,000 yuan (inclusive) or more, and the unit or individual purchases the card by off-site means, it shall transfer money through bank and shall not use cash. The limit of a single registered card shall not exceed 5,000 yuan, and the limit of a single registered card shall not exceed 1,000 yuan。
5. Service specifications
The "Administrative Measures" establish a series of single-purpose prepaid card business management systems, aiming to reduce various consumer disputes and comprehensively protect the rights and interests of cardholders. Among the more important ones: First, it stipulates that enterprises should provide cardholders withProvide a single-purpose card charter or request the purchaser to sign a card purchase agreementIt is clear that the articles of association and agreement must include the methods of purchasing, recharging, using, returning, reporting losses, and transferring single-purpose cards, as well as charging items and standards, to prevent the cardholder's interests from being infringed due to unclear agreements, incomplete agreements, and the cardholder's ignorance.
Second, according to the provisions of Document 25,Clear registration card shall not have a valid period, bearer card valid period shall not be less than 3 yearsThird, it is clearly stipulated that the card issuer shall announce on the media designated by the filing authority 30 days before terminating the payment of the unexpired single-purpose card, and provide the cardholder with free card refund service to ensure that the cardholder has a reasonable way and time to refund the card.
6. Fund management
In order to ensure the safety of funds received in advance for single-purpose cards and prevent possible redemption risks, the "Administrative Measures" established a fund depository system.It is stipulated that large-scale card issuers, group card issuers and brand card issuers should entrust part of the advance funds to commercial banks for supervisionThe purpose is to curb the over-issuance and spam behavior of card issuers and reduce the risk of pre-payment funds.
The "Administrative Measures" set the proportion of funds deposited by large-scale card issuers at 20%, which will not affect the normal operation of the enterprise, but also prevent it from abusing the funds received in advance. The capital settlement and management process of group card issuers or brand card issuers is more complicated, and the risk of capital repayment has stronger concealment and diffusion. Therefore, the "Administrative Measures" appropriately increase the proportion of funds deposited, which are determined as30% and 40%。
Considering that advance funds have become an important source of funds for some commercial enterprises, the "Administrative Measures" also set up offset measures for depository funds.Allowing card issuers to replace the fund depository agreement with guarantee insurance policy, guarantee letter, bank guarantee letter, etcTherefore, the operating burden of the enterprise is minimized.
7. Operational reports
The "Administrative Measures" focus on process supervision of card issuers and use information technology to dynamically monitor card issuers. The "Administrative Measures" stipulate that large-scale card issuers, group card issuers and brand card issuers should log in to the "single-purpose commercial prepaid card business information system" of the Ministry of Commerce after the end of each quarter, and fill in the single-purpose card business situation in the previous quarter.
The system will automatically urge the card issuer to report, and analyze and monitor the reported data to achieve real-time supervision of the single-purpose card business of the card issuer.
8. Supervision, management and legal responsibility
The "Administrative Measures" stipulate the responsibilities of the competent commercial departments at all levels and industry organizations, clarify the scope of supervision and inspection by the competent commercial departments, the way of accepting reports and complaints, and clarify the punishment organs and punishment methods in different cases of violations. In order to improve management effectiveness, the "Administrative Measures" also establish penalties for publicizing enterprise violation information, so that relevant stakeholders can keep abreast of the business situation of the enterprise, so as to give full play to the supervision role of society.
Administrative penalties are: ordered to make corrections, fines (above 10,000 30,000 below), media disclosure.
IV. The boundaries between membership cards and illegal fund-raising
(1) The concept of the crime of illegal fund-raising
According to the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Fundraising (Amended in 2022), the crime of illegal fundraising includes:
1. Article 176 of the Criminal Law "Illegal absorption of public deposits or disguised absorption of public deposits";
2. Article 192 of the Criminal Law "The crime of fund-raising fraud";
3. Article 179 of the Criminal Law "The crime of issuing stocks, company and enterprise bonds without authorization";
4. Anyone who issues fund shares without authorization shall be punished for the crime of illegal business operation in accordance with Article 225 of the Criminal Law.
5. Using advertisements to falsely advertise goods or services related to illegal fund-raising activities shall be punished as false advertising in accordance with Article 222 of the Criminal Law.
Therefore, the crime of illegal fund-raising is not a single crime. Its precise definition should be a broad category covering the above five crimes, and the most confusing one with the commercial prepaid card model is one of them, namely "the crime of illegally absorbing public deposits or disguised absorbing public deposits".
(2) Conviction of the crime of illegal fund-raising
To determine whether an act constitutes a "crime of illegal fund-raising", we can analyze the relevant provisions of the following two documents:
1. Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Fundraising (as amended in 2022):
The judicial interpretation is clear, and if the following four conditions are met, it shall be determined as illegal absorption of public deposits or disguised absorption of public deposits:
（1）Absorb funds without the approval of the relevant departments according to law or in the form of borrowing legal operations.（Illegal);
（2）Publicly publicize to the society through the Internet, media, promotion meetings, flyers, mobile phone text messages, etc.;(Publicity);
（3）Promise to repay principal and interest or pay returns in the form of currency, in kind, equity, etc. within a certain period of time;(Incentives);
（4）Absorb funds from the public, that is, from non-specific objects in society.(Social)
Among them, many local laws and regulations include "word of mouth" as one of the public channels.
2. Regarding the Regulations on the Prevention and Disposal of Illegal Fundraising:
The regulation makes it clear: "Illegal fund-raising as mentioned in these regulations refers to the act of absorbing funds from unspecified objects by promising to repay principal and interest or giving other investment returns without the legal permission of the financial management department of the **************** in violation of national financial management regulations."
In addition, Article 19 of the regulations makes it clear: "If the following acts within the administrative region are suspected of illegal fund-raising, the lead department for the disposal of illegal fund-raising shall promptly organize the relevant industry authorities, regulatory authorities, and branches and dispatched offices of the financial management department of the State Council to investigate and identify:
(1) Establish Internet enterprises, investment and investment consulting enterprises, various trading venues or platforms, farmers' professional cooperatives, mutual fund organizations, and other organizations to attract funds;
(2) To issue or transfer equity or creditor's rights, raise funds, sell insurance products, or attract funds in the name of engaging in various asset management, virtual currency, financial leasing, etc.;
(3) in the sale of goods, the provision of services, investment projects and other business activities, absorbing funds in the form of promised returns in currency, equity, and in kind;
(4) In violation of laws, administrative regulations or relevant state regulations, publicly disseminating information on absorbing funds through mass media, instant messaging tools or other means;
(5) Other suspected illegal fund-raising activities.
To sum up, the constitution of illegal fund-raising crime has four elements, namely illegality, openness, inducement, and sociality. The following analyzes the similarity and essential difference between illegal fund-raising crime and member khaki from these four aspects.
(III) The similarities and essential differences between the crime of illegal fund-raising and membership cards
1. The similarities:
(1) The issuance of single-purpose prepaid cards has not (and does not require) approval from the financial sector. (2) The sale of single-purpose prepaid cards must be publicized. (3) According to Article 53 of the Consumer Rights Protection Law, if goods or services are not provided as agreed, the issuer shall also repay the principal and interest. (4) The sale of single-purpose prepaid cards must be directed to the public.
It can be seen that the single-purpose prepaid card is very similar to the illegal absorption or disguised absorption of public deposits in the "crime of illegal fund-raising".
2. Essential differences:
The difference between illegal absorption or disguised absorption of public deposits and single-purpose prepaid cards is reflected in whether they are attractive.
Illegal absorption or disguised absorption of public deposits remains the same, and the ultimate goal of the payer is to repay the principal and interest and obtain high fixed income; while the purpose of the payer who purchases a single-purpose prepaid card is to consume at a preferential price.
Although the issuer may also repay the principal and interest when the issuer fails to provide the goods or services as agreed, this is the consequence of the termination of the contract, and the unconsumed principal will be refunded and the interest loss will be compensated.
Therefore, when a membership card is refunded and repaid, the agreed level of compensation interest is a touchstone to distinguish between preferential consumption and high interest. If the interest paid is higher than the bank loan interest, the card issuer may be suspected of illegally absorbing or disguised absorbing public deposits, and to a certain extent, it can be suspected of constituting a crime.
V. The sales model of high-value memberships in the market
Looking at the current consumer entertainment market, there are a large number of golf, yacht clubs, and other high-value membership cards, with amounts ranging from tens of thousands to hundreds of thousands, or even higher.
The sales model of this type of membership generally adopts the real-name system, signs a membership sales contract, and the amount paid is the consideration for membership. After having membership, you can enjoy preferential discounts or corresponding product consumption or service consumption. Its operation is generally carried out in the following ways:
(1) establish a club or similar association and collect membership fees in the name of the club or association.
(2) Signing a contract with a real name;
(3) generally do not promise returns.
(4) There will be a complete club or association charter, providing detailed instructions on transfer, refund, and usage rules.
(5) Have a clear purpose and objectives of the association.
The distinctive feature of this operation model is that its contractual relationship is to purchase qualifications or rights and interests, rather than prepaid custody of funds. At the same time, the above industries are not in the regulated industries for the time being, and the regulated industries are enterprises in specific industries.That is, engaged in retail, accommodation and catering, and residential servicesCorporate legal person.
VI. Risk analysis and recommendations for issuing VIP cards
1. The amount of a single card is much greater than the legal limit:According to the "Measures for the Administration of Single-Purpose Commercial Prepaid Cards", the limit of a single registered card shall not exceed 5,000 yuan, and the limit of a single bearer card shall not exceed 1,000 yuan. The amount of a single card to be issued by our group 10,000 yuan and 50,000 yuan pass cards exceed the legal requirements;
Solution suggestion: split a card according to 1,000 yuan-5,000 yuan, and then register multiple cards in the buyer's name, and the system registers multiple cards for use together.
2. Legal risks of illegal fund-raising fees:Because the pass card is publicly pushed to an unspecified public, it is similar to illegal fund-raising, so attention should be paid to avoiding corresponding legal risks.
Solution suggestions:
(1) Publicity and promotion materials should be in compliance, and no words or hints such as promised income, false service content, and service effect should appear;
(2) Try to file the issuance of the card with the relevant departments in accordance with the regulations, and entrust the commercial bank to supervise 30% to 40% of the advance funds (or replace the fund depository agreement by means of guarantee insurance policy, guarantee letter, bank guarantee letter, etc.);
(3) It is clear that the balance in the pass card can be refunded, and the unspent amount in the membership card cannot be paid monthly or annually, regardless of the interest rate.
(4) When refunding the card, you can repay the unspent amount at one time, but the interest shall not exceed the interest on the bank loan for the same period.
3. The rules for using the pass card conflict with mandatory regulations, and the risk of administrative penalties shall be borne.
Suggestions for solutions: Strictly implement the rules for the use of membership cards in accordance with the corresponding provisions of the "Measures for the Administration of Single-Purpose Commercial Prepaid Cards", that is, the use process, including but not limited to the following points:
(1) First, it is required that the enterprise provide the cardholder with a single-purpose card charter or the cardholder requires to sign a card purchase agreement. It is clear that the charter and agreement must include the methods of purchasing, recharging, using, returning, reporting losses, and transferring single-purpose cards, as well as charging items and standards, etc., to prevent the cardholder's interests from being infringed due to unclear agreements, incomplete agreements, and the cardholder's ignorance.
(2) It is clear that the bearer card shall not have a valid period, and the valid period of the bearer card shall not be less than 3 years; the bearer card with the balance of funds exceeding the valid period shall provide supporting services such as activation and card replacement;
(3) It is clearly stipulated that 30 days before the termination of payment of the unexpired single-purpose card, it will be announced on the media designated by the filing authority, and the cardholder will be provided with free card refund services to ensure that the cardholder has a reasonable way and time to refund the card.
4. Risk of customer complaints.
Solution suggestions:
(1) The instructions for using the pass card must be meticulous, and the specific services or product consumption, after-sales services, etc. that can be enjoyed should be clear one by one, and there should be no ambiguity.
(2) Once a customer complaint occurs, it should be actively negotiated and resolved to ensure customer satisfaction, avoid repeated complaints from customers to relevant government departments, and prevent the risk of administrative penalties and reputation damage.
VII. Conclusion:
1. During the issuance of the group's VIP pass card, lower-amount membership cards can be implemented by splitting the amount. At the same time, the provisions of the "Single-Purpose Commercial Advance Payment Management Measures" shall be effectively adhered to, and the instructions for the use of the pass card shall be formulated in detail. The content of purchase, recharge, use, refund, loss reporting, transfer, and charging items and standards must be clear to prevent the interests of cardholders from being infringed due to unclear agreements, incomplete agreements, and unawareness of cardholders.
2. For high net worth members, they can establish corresponding clubs and purchase membership by members, and different levels of members enjoy different benefits. Because single-purpose commercial prepaid cards are currently limited to specific industries,That is, engaged in retail, accommodation and catering, and residential servicesThe rights and interests that members can enjoy should be consumption or product services other than restricted industries, such as yacht clubs, seaplane clubs, medical services, elderly care, wooden house management rights, etc. Restricted industries are included as supplementary content.
You can refer to the operation model of market golf membership or yacht club membership.
3. In the operation of hotels and scenic spots, retail, accommodation, catering, and resident service industries can be settled using membership cards, but it is recommended to use contractual relationships for products and services not in the above areas, that is, the purchase of qualifications or rights.
Lawyer Profile
Li Huahong
Zhiheng Law Firm
Real Estate and Construction Engineering Research Center, Executive Director
Shenzhen Lawyers Association Tourism Hotel Legal Professional Committee
He served as the legal director of an investment group, and later became the permanent legal counsel of the investment group and dozens of related companies. The companies he served include: real estate investment companies/Private Offering Fund investment companies/cultural investment companies/asset management companies/hotels/Beijing municipal parks, scenic spots/yacht clubs/wine cultivation, production companies/traditional Chinese medicine hospitals/animation production companies, etc.
During more than ten years of practice, he has focused on professional fields such as asset restructuring and mergers and acquisitions, real estate project investment and financing, real estate development and construction, corporate governance, and Private Offering Fund, and has led more than 100 equity investment and financing, asset mergers and acquisitions and restructuring projects.