Sexual harassment, injury and disability, overlord clause beware of these "pits" in the gym

   Sexual harassment and verbal insults should only be regarded as "mouth addiction"

   On April 9, it was reported by the media that Ms. Xiaoqian of Hangzhou paid a deposit for private lessons in a gym. Afterwards, she felt that the price was too expensive and wanted to return it. In order to retain her, the fitness instructor proposed the conditions of accompanying sleep. Xiao Qian told the media: "I said that I can find their coach or him to sleep with me for one night, and that if I need a woman, they can also provide a woman, saying that their director is a lesbian, so that their director can sleep with me for one night." When asked, a supervisor of the fitness center said that the social atmosphere was more open, but it was just a mouth addiction.

   Prior to this, Ms. Zhang, a citizen of Nanjing, was inexplicably "helped" by a fitness instructor while running in the gym. She felt harassed and called the police station. Finally, the gym apologized to him and refunded the card fee in full.

   Article 38 of China’s Constitution stipulates that the personal dignity of People’s Republic of China (PRC) citizens is inviolable, and it is forbidden to insult or slander citizens by any means. Article 40 of the Law on the Protection of Women’s Rights and Interests stipulates that sexual harassment of women is prohibited. Article 38 of the Beijing Measures for Implementing the Law on the Protection of Women’s Rights and Interests in People’s Republic of China (PRC) (Revised Draft) stipulates that it is forbidden to sexually harass women in any form such as language, writing, images, electronic information and physical behavior. The Measures for Implementing the Law on the Protection of Women’s Rights and Interests in People’s Republic of China (PRC) Province stipulates that "it is forbidden to sexually harass women in the form of obscene language, words, pictures, electronic information and behaviors that violate laws and ethics."

   The coach put forward a clear demand for small money, which caused him to have obvious psychological discomfort and constituted sexual harassment. According to the law, if sexual harassment of women in violation of the law constitutes a violation of public security management, the victim may request the public security organ to impose administrative punishment on the illegal act according to law, or bring a civil lawsuit to the people’s court according to law.

   Injuries and disabilities are not uncommon. The qualification review of coaches needs to be standardized.

   In recent years, a large number of newcomers have poured into the field of fitness, but there is a lack of professional private education, and disability incidents are frequent due to improper or unprofessional guidance.

   In July, 2014, Zhang Wanting, a 17-year-old girl from Shenyang, died suddenly in a gym weight-loss training camp. According to media reports, Zhang Wanting had undergone high-load training and was strictly controlled in diet, and the coach at the time of the incident had no relevant qualifications and first-aid knowledge.

   In 2015, a fat man accidentally fell down and broke his achilles tendon because of bending over and lifting his legs, which was not suitable for his weight load. At that time, private teachers and members were still laughing and chatting, thinking that there was no serious problem.

   In 2016, Pearl Krabs, a second-year graduate student in Beijing, bought 4,500 yuan of private education courses in a fitness chain. Three months later, the hospital diagnosed the second degree damage of the posterior horn of the medial meniscus of the right knee; Previously, Pearl Krabs’s coach had been encouraging her to keep exercising. When defending rights, the coach could not produce any professional certification. Finally, the gym returned 4,000 yuan to Pearl Krabs and dismissed the coach.

   It is understood that there are roughly three types of private education sources in the industry: graduates from major sports colleges, retired athletes and social fitness enthusiasts. Even some are just in good shape, and they can be employed after attending some short-term training courses. There is no uniform standard for the post qualification of private education in the whole fitness industry, and the threshold for employment is completely grasped by the fitness institutions themselves.

   According to the 2015 Career Development Report of Fitness Coaches in China issued by the Vocational Skills Appraisal and Guidance Center of the State General Administration of Sport, 52% of the fitness coaches who have been employed for 1-3 years are students from sports colleges, and the remaining 48% have no professional background.

   At present, there are two types of qualification certificates recognized by the fitness industry, one is the "national job certificate". The other is the qualification certificate certified by non-governmental organizations, or the award-winning certificate of bodybuilding competition. Among them, the "national job certificate" belongs to the level evaluation category and is not mandatory. Just because a fitness instructor wants to be employed does not mean that he must pass the national vocational examination and obtain a "national vocational certificate".

   Lu Dajiang, a graduate tutor at the School of Sports Science of Shanghai Institute of Physical Education, suggested that the admission system for fitness instructors should be established with reference to the supervision methods of high-risk industries such as swimming and rock climbing. The relevant coach qualifications are subject to the access system, that is, the personnel engaged in guiding teaching must obtain the national vocational qualification certificate before they can take up their posts and engage in related work.

   Article 32 of the National Fitness Regulations stipulates that those who engage in high-risk sports must have a specified number of social sports instructors and rescuers who have obtained national vocational qualification certificates. The first batch of high-risk sports announced by the state in 2013 include swimming, skiing, rock climbing and diving.

   Fitness institutions have overlord clauses, and it is difficult for consumers to transfer or return their cards.

   At present, many fitness cards on the market require me to hold the card. If consumers require to pay a handling fee ranging from several hundred yuan, some gyms even stipulate that they cannot transfer cards.

   Jiang Dianliang, a southern legal aid lawyer, said that because the consumer card generally indicates that "this card is not transferable", if the consumer does not sign the relevant agreement on returning, transferring and stopping the card before handling the card, when he gets the card, he has already acquiesced that the merchant needs to pay for the card transfer. Before handling various consumer cards such as fitness cards, you need to read the relevant agreements carefully, ask whether the fitness card can be extended or transferred or returned in case of illness, business trip, etc., and sign the relevant payment agreement for returning, transferring and stopping the card. When signing the relevant consumer card agreement, in order to protect your legitimate rights and interests, you must read the terms carefully. If you find anything unclear or unreasonable in the terms, you should raise it in time.

   In addition to high transfer fees and prohibition of card transfer, it is also difficult for many consumers to return the card.

   In December 2016, consumer Mr. Chen complained to Hebei Consumers Association that in September 2015, he applied for an annual card with an amount of 2,300 yuan in a gym in Shijiazhuang. Since then, Mr. Chen has been suffering from illness and needs chemotherapy. The doctor’s advice is not suitable for exercise. The previous annual card was not used, and Mr. Chen proposed to return the card to the gym. The other party refused to refund the money on the grounds that there are clauses in the contract, such as "The contract shall not be terminated except for force majeure" and "The service cannot be accepted due to its own reasons, and the individual shall bear the responsibility".

   Hebei Consumers Association believes that after the establishment of the contract, the objective situation has undergone major changes that are not commercial risks and cannot be foreseen by the parties at the time of conclusion of the contract. It is obviously unfair for one party to continue to perform the contract or the purpose of the contract cannot be achieved. If the consumer proposes to change or terminate the contract, the operator should change or terminate the contract accordingly according to the principle of fairness. It is illegal for the operator not to change or cancel the conformity. In other words, consumers have the right to terminate the contract according to law in special circumstances.

Harbin "1011" case: the family members of the deceased are temporarily unable to consult the autopsy report.

  At 14: 00 on the 18th, the Information Office of Harbin Municipal Government held a press conference on the "10.11" case to inform about the handling of the case and recent online and public concerns. Lu Hongxi, member of the Party Committee and deputy director of Harbin Public Security Bureau, attended the conference, which was presided over by libing, director of the Municipal Government Information Office.


  Briefing on the Fifth Press Conference of "10.11" Case


  On the afternoon of November 6, when the Harbin Municipal Government Information Office held a press conference on the "10.11" case, the representative of the autopsy expert group on the "10.11" case had announced the autopsy appraisal conclusion of the deceased Lin Songling to all walks of life. A press conference was held on November 18th to inform about the handling of the case and recent online and public concerns.


  1. Two policemen involved in the case have been arrested by the procuratorate.


  After examination, the People’s Procuratorate of Harbin believes that Qi Xin (the former deputy commander of the Criminal Police Brigade of the Public Security Department directly under the Harbin Railway Public Security Bureau) and Liu Linan (the former policeman of the command center of the Harbin Railway Public Security Bureau) are suspected of intentional injury, which meets the arrest conditions stipulated in Article 60 of the Criminal Procedure Law of People’s Republic of China (PRC). On November 14, 2008, the procuratorial organ approved the arrest of the two men according to law, and now they are detained in the detention center of the Municipal Public Security Bureau.


  Second, the criminal suspect Yang Sen has been arrested by the procuratorate.


  In this case, the suspect, Yang Sen (male, 22 years old, unemployed), injured Li Xinyu (a policeman from the Anti-drug Detachment of Harbin Public Security Bureau) and Wang Jingang (a policeman from Xiangfang Branch of Harbin Public Security Bureau) successively in the candy bar, resulting in two fractures on the inner wall of Li Xinyu’s left orbit and the 8th, 9th, 10th and 11th ribs of Wang Jingang’s right rib, and Yang Sen’s behavior led to the expansion of the situation.


  On October 31, identified by the Forensic Center of the Provincial Public Security Department, both policemen were slightly injured. On November 6, the task force entrusted the Institute of Forensic Science and Technology of the Ministry of Justice to conduct another damage appraisal on the injuries of two policemen, and the conclusion was completely consistent with the appraisal conclusion of the Forensic Center of the Provincial Public Security Department.


  The criminal suspect Yang Sen’s behavior violated the provisions of the second paragraph of Article 234 and the first paragraph of Article 234 of the Criminal Law of People’s Republic of China (PRC), respectively. According to the provisions of Article 60 of the Criminal Procedure Law of People’s Republic of China (PRC), the Harbin Municipal People’s Procuratorate approved the arrest of Yang Sen on November 14 on suspicion of intentional injury and executed it according to law. Now it is detained in the detention center of the Municipal Public Security Bureau.


  In the investigation, it was also found that the suspect, Yang Sen, was punished by the people’s court on July 2, 2006 for beating three policemen and committing the crime of obstructing official duties. The People’s Procuratorate of nangang district, Harbin accused that at about 23: 00 on July 2, 2006, when the defendant Yang Sen drunk and drove through the bus terminal of No.109 Wenhua Street in nangang district, Harbin, they had an altercation after scraping with the taxi driven by Li. The traffic police officer Liu Shouzhuang of the Power Traffic Police Team came to handle the traffic accident, and Yang Sen did not cooperate with the traffic police and injured Liu Shouzhuang with his fist. When Liu Lei of Minsheng Road Police Station and Yuliang of Wenhua Street Police Station rushed to the scene to handle the case, the defendant Yang Sen was still there. Experience injury: Liu Shouzhuang suffered from head trauma, head and face soft tissue contusion and blunt contusion in his right eye; Liu Lei suffered from soft tissue contusion in his right elbow; Yuliang suffered from left lower limb trauma and left lower abdomen soft tissue contusion. The defendant Yang Sen was caught on the spot.


  The public prosecutor believes that the defendant, Yang Sen, used violence to obstruct the police from performing their official duties, and his behavior has constituted a crime of obstructing official duties, and he is requested to be punished according to the provisions of Article 277 of the Criminal Law of People’s Republic of China (PRC).


  On August 18th, 2006, the People’s Court of nangang district, Harbin held a public hearing to hear the case.


  The People’s Court of nangang district, Harbin held that the defendant, Yang Sen, obstructed the police from performing official duties by violence, and his behavior constituted a crime of obstructing official duties. The charges charged by the public prosecution agency were established and should be punished. The defendant, Yang Sen, was a college student for the first time, and pleaded guilty with a good attitude, and compensated the victim for economic losses. The two sides reached a settlement. The court adopted the defendant’s argument that Yang Sen should be given a lighter punishment. According to the provisions of Articles 277, 52 and 53 of the Criminal Law of People’s Republic of China (PRC), the defendant Yang Sen was sentenced to the crime of obstructing official duties according to law, with a single fine of RMB 5,000.


  Three, about the legal responsibility of the other four policemen.


  According to the on-site surveillance video, statements of both parties and witness testimony, there is no evidence to prove that Wang Jingang, a policeman from Xiangfang Branch of Harbin Public Security Bureau, Li Xinyu, a policeman from Anti-drug Detachment of Harbin Public Security Bureau, and Luan, a policeman from Traffic Police Detachment of Harbin Public Security Bureau? Li Feng, a policeman of Zhaodong Public Security Bureau in Suihua City, Heilongjiang Province, committed a criminal act. Therefore, after communicating with Harbin People’s Procuratorate, the task force changed the compulsory measures for four people to obtain bail pending trial according to the provisions of Article 73 of the Criminal Procedure Law of People’s Republic of China (PRC).


  


  4. With regard to the jurisdiction of this case, there is an article on the Internet saying that the family of the deceased asked the case to be handled by the Ministry of Public Security or the public security organs in other provinces, and asked the Harbin Public Security Bureau to avoid it.


  The provisions of Article 28 and Article 31 of the Criminal Procedure Law of People’s Republic of China (PRC) only apply to judges, inspectors, investigators, clerks, translators and appraisers, but not to units and departments handling cases.


  Paragraph 2 of Article 17 of the Procedures for Handling Criminal Cases by Public Security Organs of the Ministry of Public Security stipulates that criminal cases with disputed jurisdiction or special circumstances may be designated by a common public security organ at a higher level.


  On the day of the incident, the family members of the deceased strongly demanded that the case be handled by Harbin Public Security Bureau. Accordingly, the Provincial Public Security Bureau designated our bureau to file a case for jurisdiction. Therefore, the Municipal Public Security Bureau filed a case for investigation in accordance with the law, and in the process of handling the case, the Municipal Public Security Bureau completely followed legal procedures and adhered to the principles of legality, fairness, openness and transparency. There was no problem of favoring any party. Therefore, it is not in compliance with the law to ask Harbin Public Security Bureau to withdraw.


  Five, about the family of the deceased to consult all the contents of the autopsy report.


  We have announced the autopsy to the public through a press conference. In addition to four authoritative forensic experts from the Ministry of Public Security, the People’s Procuratorate of the Supreme People’s Procuratorate and Inner Mongolia Autonomous Region invited by the handling unit through the Provincial Public Security Department, and three forensic experts designated by the family of the deceased, Fu Guoping, the chief forensic doctor of Heilongjiang Provincial People’s Procuratorate, witnessed the whole process of the autopsy site. The family of the deceased and their lawyers also witnessed the whole process of autopsy. Autopsy is completely in line with legal procedures, and the autopsy results are realistic.


  Article 121 of the Criminal Procedure Law of People’s Republic of China (PRC) stipulates that the investigation organ shall inform the criminal suspect and the victim of the appraisal conclusion used as evidence. At present, we have informed the family of the deceased of the autopsy conclusion in time in accordance with legal procedures.


  Article 36 of the Criminal Procedure Law of People’s Republic of China (PRC) stipulates that defense lawyers may consult, extract and copy the litigation documents and technical appraisal materials of the case from the date when the people’s procuratorate examines and prosecutes the case, and may meet and correspond with the criminal suspect in custody. Other defenders, with the permission of the People’s Procuratorate, may also consult, extract and copy the above-mentioned materials, and meet and correspond with criminal suspects in custody. The case is still in the investigation stage and has not been transferred to the people’s procuratorate for review and prosecution. Therefore, defenders, including lawyers, relatives and friends, cannot consult, extract or copy the technical appraisal materials of this case. (Qin Lei, Zhang Yingmin, Lu Jun)

Editor: Wang Jiaolong