Improving the system of protection of the rights of buyers of vehicles

Shaposhnikov Vitalii Leonidovich ORCID: 0000-0003-2215-867X PhD in Law Associate Professor, Department of Management and Administrative Activities of the Internal Affairs Bodies, Belgorod Law Institute of the Ministry of Internal Affairs of Russia named after I.D. Putilina 308024, Russia, Belgorod region, Belgorod, Gorky str., 71, room 428 v.shaposhnikov@mail.ru Other publications by this author

The technical condition of vehicles is one of the essential factors determining road safety. The presence of certain technical faults directly prohibits the operation of vehicles. Making changes to the design of vehicles involves the implementation of certain licensing procedures designed to confirm the safety of the changes made to the design.

According to the data of the Traffic Police of the Ministry of Internal Affairs of Russia in the Russian Federation, a vehicle malfunction is one of the causes of road accidents (see Table No. 1)

Table 1. Accident due to technical

vehicle malfunctions (according to the official website of the Traffic Police of the Ministry of Internal Affairs of Russia // http://stat .gibdd.ru/)

The proper technical condition of the vehicle is ensured by its owner through measures to prepare for operation, its reasonable and rational operation, maintenance in technically sound condition, including timely diagnosis, repair of catches and vehicle parts, compliance with the requirements of the legislation of the Russian Federation on technical regulation. Any manipulation of the technical condition of the vehicle is associated with a decrease in the safety of the driver, passengers and traffic in general. Thus, the technical condition of the car is an important factor in road safety.

The withdrawal of many foreign car manufacturers from the Russian market in recent years and, as a result, a decrease in the number of new vehicles sold leads to a gradual aging of the fleet and the active development of the used car market. Russia pursues a policy of protectionism, developing domestic car production, and reduces dependence on foreign concerns and the policies of unfriendly countries ^{[5, p. 31]}. Dealers selling cars have focused their efforts on used cars, further warming up this market ^[10]. Every year, the issues of their technical condition become more acute, and the costs of car owners for the maintenance of cars are getting higher.

For creditor banks, the excessive demand for used cars is dangerous because the number of cases when mileage is being twisted, "cosmetic" repairs are being made that hide serious defects, etc. Therefore, close attention should be paid to the quality of the assessment of the car as a collateral ^[10].

The development of the used car market, and according to some reports, new cars, is associated with the risk of entering the market of cars with modified vehicle mileage readings. The reason for this is the desire of the owner of the vehicle to sell the car more expensive and make a big profit. Currently, a completely legal way to achieve this result is to adjust or reduce the recorded mileage of the car. The new owner receives a car with unreliable data about its condition, and the seller receives additional information. It is difficult to assess the economic damage from these actions for the country, but according to approximate estimates, it is estimated in millions of rubles.

According to data from various sources, today in the secondary market, almost a third of cars are sold with twisted mileage and this applies to a large extent to mass-produced used cars of Russian brands and foreign cars in an affordable price category. Cars are sold more expensive, and the buyer loses up to 25% of the cost of the car.

Odometer indicators are a price-forming factor when selling a car and their falsification to a lower value leads to an increase in price ^[7]. As a result, the inflated cost of the vehicle does not correspond to the real one. At the same time, its further operation will be more expensive, including unscheduled repairs, and reselling such a car will be difficult.

Thus, the purchase of a used car is in a certain sense a lottery in which the most attentive, meticulous and legally savvy person wins. Gullible and naive people, lovers of low prices on the secondary market risk joining the ranks of victims of fraudsters. And the object of fraud here is traffic safety, the life and health of its participants ^{[3, p. 55]}.

The result of twisting the mileage of cars is a violation of the balance between the actual mileage and the corresponding maintenance. As is known, the maintenance of vehicles is carried out with a certain frequency. The greater the mileage of the vehicle, the greater the cost of this procedure.

Misleading the owner of the car can lead to unexpected breakdowns of the car, premature wear of components and parts, and, as a result, endangering the life and health of the driver, passengers, and other road users. Thus, on the one hand, road safety is under threat, on the other – the property rights of citizens. Although there are alternative points of view that actions to reduce the odometer (mileage meter) readings do not have a direct impact on road safety, they cannot be considered an offense in this area (Volobuev A. A couple of extra km: The Ministry of Internal Affairs did not support fines for twisting the mileage // URL:https://iz.ru/978112/aleksandr-volobuev/para-lishnikh-km-mvd-ne-podderzhalo-shtrafy-za-skruchivanie-probega (date of application: 03.10.2024)).

Taking into account current trends, the decrease in odometer readings as a phenomenon will expand if legislative barriers to this activity are not established. Interested parties (beneficiaries) in the current situation are primarily legal entities and citizens engaged in the sale of vehicles. Secondly, persons who provide services to the seller of the car for mileage adjustment on a reimbursable basis.

Only a specialist of a narrow profile can identify deception in modern cars using computer diagnostics. As you know, the establishment of the fact of deception presupposes the presence of special equipment and special knowledge, which means that an ordinary buyer is not able to determine this independently and is forced to resort to their services for a fee. And this is another beneficiary – a person with special knowledge and equipment that allows, at the request of the buyer of the car, to diagnose it and try to establish the fact of mileage adjustment.

An additional burden for a citizen who has decided to purchase a used car is to establish its actual condition, which involves time and additional financial resources. Unfortunately, this does not guarantee that the buyer will achieve a positive result. It is not guaranteed to establish the fact of mileage distortion, as well as to determine who exactly made changes to the mileage of the car if it had several owners. The procedure for establishing and proving in court, within the framework of civil law relations, misleading the seller of the buyer regarding vehicle data is also very difficult. Unfortunately, there are still no sufficiently effective methods for establishing illegal actions of sellers. Although, according to some experts, it is very difficult to hide the fact of changing the readings of the distance traveled by the vehicle ^[8].

Thus, today there is an urgent issue of protecting the rights of bona fide buyers of used cars, the number of which will only grow in the coming years. Solving problems related to mileage adjustment should be entrusted exclusively to citizens, relying on their attentiveness and prudence can hardly be called correct and, ultimately, civilized.

The system of protecting citizens' rights from unscrupulous participants in civil relations is presented today in several ways, which are periodically disclosed in open sources and become the subject of scientific discussion. There is also self-defense, which requires certain knowledge and skills from citizens, protection by contacting authorized state bodies with a petition for restoration of violated rights in case of establishment of facts of consumer fraud and violation of their property rights.

Private law protection of the interests of buyers of passenger cars as technically complex goods has its own characteristics, which are manifested in the process of both judicial protection and self-defense of violated rights ^{[2, p. 110]}.

The defrauded buyer has the right to go to court, demanding compensation for damages or termination of the transaction and a refund, can recover damages through the court for bringing the car into a condition appropriate for mileage and year of manufacture. But here the question may arise about who exactly made the changes to the mileage of the car. The plaintiff will have to prove the very fact of twisting, which is very difficult, since it is officially not fixed anywhere (Bulgakov D. I want to confuse: in Russia they proposed to punish for twisting the mileage URL:// https://iz.ru/1484740/dmitrii-bulgakov/zaputat-khochu-v-rossii-predlozhili-nakazyvat-za-skruchivanie-probega (date of application: 01.10.2024)).

There is no criminal liability for such actions in the Russian Federation ^[1]. Within the framework of administrative and jurisdictional activities, administrative liability is provided for under Article 14.7 of the Administrative Code of the Russian Federation for misleading consumers about consumer properties or quality of goods or under Article 7.27.1. for causing property damage by deception or abuse of trust. However, it must be admitted that these articles of the law work extremely poorly and it is not easy to establish the guilt of a person in correcting mileage.

One of the most frequently proposed ways to counteract mileage twisting is to establish criminal liability for fraudulent actions when selling a car ^[6]. Using foreign practice, it is proposed to integrate into domestic legislation some approaches to the prevention of this phenomenon, establishing criminal liability for twisting the mileage ^[9]. The foreign law enforcement system is following the path not only of criminal punishment of persons who commit such actions, but also of countering the manufacture and distribution of equipment with which changes in odometer readings are allowed.

Many domestic experts are confident that by itself the tightening of criminal or administrative legislation in the Russian Federation, the practice of its application, will not be able to eliminate the problem until methods of fixing mileage are developed, since officially it is not fixed anywhere ^[4].

Tools for periodic mileage recording are needed. Mileage readings can be entered by dealers when servicing cars, insurance companies. When re-registering a car with the State Traffic Inspectorate, it is sufficient to provide, without fail, the possibility of reading the readings of the on-board computer.

In the meantime, an important help in preventing mileage twisting can be the creation of car history registers, similar to the one created by carVertical. carVertical launched the first global car history registry back in 2019 and is currently present in more than 25 countries. Its reports are based on databases of more than 900 government registries, insurance companies, law enforcement agencies and other institutions around the world (Twisted mileage: what is dangerous and punishable // URL: https://dzen.ru/a/ZB2eLdHK6WQSuFBr (date of access: 10/24/2024)).

The Russian equivalent of this is the Autocode information resource. The availability of its use is limited by the fact that the service is provided on a paid basis. The availability of this or a similar resource at no cost would help potential buyers of used cars.

In the field of law enforcement, emphasis should be placed on the prevention of offenses provided for in Articles 14.7, 7.27.1 of the Administrative Code of the Russian Federation. Crime prevention is one of the key areas of activity of the internal affairs bodies. In accordance with Article 16 of Federal Law No. 182-FZ of June 23, 2016 "On the Fundamentals of the Crime Prevention System in the Russian Federation", crime prevention is carried out when social, economic, legal and other causes and conditions that contribute to the commission of offenses arise.

In our opinion, today it is necessary to create a legal mechanism at the state level and, on its basis, a system open to citizens for recording the mileage of used cars, allowing them to track their history from the moment they go on sale to disposal. This would make it more likely to minimize changes to the car's odometer readings and protect bona fide buyers.

Prevention of administrative offenses provided for in Articles 14.7 and 7.27.1. of the Administrative Code of the Russian Federation must be carried out comprehensively, influencing the causes and conditions conducive to the commission of these offenses. These include the establishment of liability for persons providing services for correcting car mileage data. What kind of responsibility it will be and what its size is – these issues need to be discussed independently, but the fact that this activity contributes to deceiving consumers and causing property damage to buyers of vehicles is quite obvious. Moreover, despite all the discussion of the issue, this affects the technical condition of the car, since it is in direct causal connection with the owner's decision on the frequency, maintenance, repair and, ultimately, road safety on public roads.

It is not possible to leave the problem itself in the same state, as well as approaches in the system of protecting the rights of buyers of vehicles, since, on the one hand, the rights and legitimate interests of citizens are at the center of this, and on the other hand, the authority of the state law enforcement system and road safety. The position of buyers of mainly used vehicles as participants in civil relations is extremely vulnerable in modern conditions, plunging them, among other things, into an atmosphere of suspicion in the motor transport market, distrust of the capabilities and ability of state institutions to protect their interests, which is not beneficial in consolidating society against the economic threats of modernity.