Research On The Consumer’s Right Of Cancellation

Because of the importance of the consumer’s right of cancellation, many scholars suggest that this right should be adding into the Consumer Protection Law. This suggestion causes lots of discussions in our country. The name of consumer’s right of cancellation is came from BGB, but it also exist in lots of other countries’legislations. As an exotic, consumer’s right of cancellation has became a mature system. There’s no systematic research of the consumer’s right of cancellation in our country. If we want to transplant the consumer’s right of cancellation into our legal system, many problems must be studied. The most important problems are whether we should transplant this system and how to make it into our legal system. Around the above two problems, for the aim of providing some suggestions, this thesis begins with the legitimacy of the consumer’s right of cancellation, then keep researching on the other problems which needs supplement and refinement.IntroductionThe introduction first introduces that the basic problems of the consumer’s right of cancellation, including the conception, origins, system value and the necessary of the transplantation of this right. The consumer’s right of cancellation means that consumers can cancel the contracts unconditionally within the specified term after the formation of contracts. The earliest legislation of the consumer’s right of cancellation began as the result of a recommendation by the English Committee on Consumer Protection in 1962. Eventually, England adopted the first cooling-off provision in the Hire Purchase Act of 1964. Due to its irreplaceable value, many other countries establish this right rapidly. The value of the consumer’s right of cancellation are as below:firstly, it can protect the meaning of freedom, secondly, because consumer can cancel the contracts unconditionally within the specified term after the formation of contracts by this right, the litigation risk can be avoided, a lot of social cost can be saved, the efficiency can be enhanced.Lastly, because the risk of cancellation where the consumer’s right of cancellation is in force, the emphasis of sellers might shift from a single-minded effort to an attempt to create a real and lasting desire for the product or service that will survive the period during which the contract may be cancels. In addition, in the introduction, this thesis also study on the seriousness of the consumer problems, the limitation of current legal system, and the non-systematize provision of our legislation about the similar right, the necessary of transplantation of the consumer’s right of cancellation can be proved. Finally, the thesis explains that the methods adopted in this thesis are method of comparative analysis method, method of historical analysis and method of typology analysis and it thoroughly interpret the consumer’s right of cancellation from its general point to specific point.Chapter One "the legitimacy of the consumer’s right of cancellation"If the consumer’s right of cancellation is transplanted into our legal system, the legitimacy of it must be proved. The legitimacy of consumer’s right of cancellation can be proved as below:on the one hand, the consumer’s right of cancellation can not be substituted by other provision of our legal system; on the other hand, the philosophy of the consumer’s right of cancellation is in accordance with our legal system.Around this central idea, this chapter discussed the big differences between the consumer’s right of cancellation and the similar provisions in our legal system firstly. Because of these differences, the consumer’s right of cancellation must be transplanted into our legal system. Secondly, this chapter pointed out that the philosophy of the consumer’s right of cancellation is in accordance with our legal system. On the one hand, behavioral economics and legal paternalism proved the philosophy of the consumer’s right of cancellation. Specifically, according to the theories of the behavioral economics, when people are in transient emotionally or biological "hot" states, they sometimes make decisions that are costly or even impossible to reverse. In the contracts which involves consumer’s right of cancellation, consumers usually in transient emotionally or biological "hot" states, the consumer’s right of cancellation can allow them to reevaluate their decisions free from the transient emotionally or biological "hot" states. According to the legal paternalism, consumers are weak, therefore, our law should be designed to help them. On the other hand, the consumer’s right of cancellation did not violate the basic principles of civil law. The principle of good faith can be used to prove the basis of the consumer’s right of cancellation. Because the consumer’s right of cancellation can protect the real freedom of consumers, it is not conflict with freedom of contract principle and contract effectiveness principle.Chapter Two "the legal nature of the consumer’s right of cancellation"In this chapter, through the study on the legal nature of the consumer’s right of cancellation, we can know that how to transplant it.By using the method of comparative analysis method and discussing the other countries’legislation of the consumer’s right of cancellation, this chapter pointed out that the consumer’s right of cancellation is be known as a right of cancellation. This chapter focused on the legal nature of the consumer’s right of cancellation on the BGB. On the BGB, the consumer’s right of cancellation has triple characteristics: right of withdrawal, right of the revocation, right of the cancellation. According to the BGB, the legal effect of the consumer’s right of cancellation is similar as the right of cancellation, therefore, most German scholars take the consumer’s right of cancellation as a kind of the right of cancellation.Through the analyzing of the right of withdrawal, the right of revocation, the right of cancellation in our legal system, this chapter pointed out that the consumer’s right of cancellation can be bring into the right of cancellation. There are several reasons:firstly, the consumer’s right of cancellation is a kind of right of cancellation can be proved that the legislative experience in other countries. Secondly, there’s no system barrier to bring the consumer’s right of cancellation into the right of cancellation in our legal system. Thirdly, the exertion of the consumer’s right of cancellation is similar as the right of cancellation. Finally, let the legal effect of the right of cancellation’s provision apply to the consumer’s right of cancellation is beneficial in practice.Chapter three "the sphere of the consumer’s right of cancellation"This chapter concerns itself with the sphere of application on the consumer’s right of cancellation. It is from the study of extraterritorial legislation experiences and the consumer’s right of cancellation system, the sphere of application on the consumer’s right of cancellation should be strictly restricted. This chapter restricts it from two aspects.The consumer’s right of cancellation applies only to consumer contracts. Consumers have the disadvantage over proprietors and are possible to make unreasonable or uneconomical decisions, so it is necessary to give consumers the right of cancellation to ensure their true freedom of will in order to guarantee the genuine fairness of contract. This chapter mentions respectively the concept of consumer, proprietor, and relations of consumption and consumer contracts.The consumer’s right of cancellation applies only to specific consumer contracts, so this chapter analyzes the types of the consumer contracts in which the consumers right of cancellation can be applied through the typed and abstract study. Embarking from the typed angle, this chapter indicates that consumer contracts in which the consumers right of cancellation can be applied mainly include the contact for door-to-door sales, the contract for remote transaction, the contract for consumptive credit,and the consumer contract concerned immovable property. At the same time, embarking from the abstract angle, this chapter indicates that consumer contracts in which the consumers right of cancellation have some intercommunity. The intercommunity shows mainly that the location where an agreement is made is different from the common transaction; partners are not simultaneously attendant when the contract is signed, and the legal nexus is intricate, etc.Chapter four "the exercising rule for the consumer’s right of cancellation"It is necessary to minutely stipulate the exercising rule for the consumer’s right of cancellation.This chapter firstly investigates the exercising rule for the consumers right of cancellation. The exercising style should be limited to the following situation: textform and returning the product. As to the fee for returning goods, should be burdened by the proprietor in principle as shown in this chapter. But the law should also permit that the consumer foots this bill through the convention between the consumer and the proprietor in the consumer contract if the price of goods is lower.As to the entry-into-force time of declaration of will, shall the declaration of will be effective from the date of its entering the sphere controlled by the proprietor as shown in this chapter. In order to protect the consumer better, we should take the date of making the declaration of will as standard when we judge if this declaration of will is in the duration of the consumer’s right of cancellation.As to the terms of validity of right, should the duration of the consumer’s right of cancellation be limited to seven business days. The terms of validity of right should be counted from the time when the proprietor fulfills his due informing obligations, but the duration of six months should also be established at the same time. When we count the terms of validity of right, we should take the day in natural meaning as standard but not be limited to workday. In addition, if the terms of validity of right made by the consumer and proprietor are longer than that stipulated by the law, the convention is valid. And this chapter also shows that the law should stipulate minutely the informing style and content.As to the legal effect, the legal effect of the legal relief right should be applied as shown in this chapter. If the consumer exercises the consumer’s right of cancellation, the original contractual relationship of this consumer contract is translated into the liquidation relationship, namely a new debtor-creditor relationship that is opposite to the original contract. The contents of this new debtor-creditor relationship:the debt that was carried out is translated into a new debt, which should be carried out by the two partners; the debt that was not carried out is translated into a new debt that was carried out, thereby it is extinguished. If the target of the consumer contract is goods or money, the consumer not only should return it to the proprietor in a proper way but also return it in the natural situation of the goods, otherwise the consumer should undertake the obligation of compensation of value.