| A cooling-off period is a specified period of time, within which the consumer has the right to cancelation without any reasons, as a right to rescind, disaffirm,or revoke a contract, or more generally as a withdrawal right. A related protective measure is the right to a period of deliberation, during which the consumer is not allowed to accept the offer made and conclude the contract. It is a statutory mandatory for consumers to provide special protection rules. The system has the following characteristics:the duality of purpose or function; rights based on the leagal nature; the unilateral nuture of the subject of right (including the specific forms and the content without reason), and the of the legal consequences whiout payment.The cooling-off period is a specific system to protect legitimate interests of consumers. It is a progound reflection the contract law participation in reconstruction of the contract content of the modern trend. Therefore, the ideal legal value of cooling-off period is substantive fairness on protecting the interests of consumers, the overall efficiency of the community and freedom of contract. Firstly, the meaning of substantive fairness is to strengthen the consumer’s protection and control the operator’s behavior. These include such as enhance the information comprehensively and authenticitly, reduce the irrational degree of consumer’s behavior, thus effectively reducing the situational monopolies by operators and finally correct the inequality between the operators and consumers. Secondly, the meaning of overall efficiency of the community is the following fields. On the one hand, the real information of the goods and services can be passed comprehensively and thoroughly and the overall quality of the goods and services in the market are improved; on the other hand, the risk of expulsion of high-quality goods and the possibility of market coolapse substantially reduced, that achieve the efficiency of distribution and make the resources maximize the effect. Finally, the meaning of freedon of contract is the following fields. The cooling-off system provides contracting parties an exit mechanism:when the objective situation (such as complexity of the contract rules which make consumers consider unclear, etc.) or man-made force (such as high pressure or deceptive sales,etc.) leading to lack of rational parties, so they can not achieve the situation of freedom of contract. Under this situation, the cooling-off period can provides the consumers a opportunity to exit to get rid of the constraints inherent in the contract.However, building this system in China still faces a series of obstacles, including theoretical, institutional and cultural barriers. Solving the theoretical obstacle is to establish the principle of balancing in order to achieve the balance of interests between the consumers and operators. Solving the institutional barrier includes the following two aspects. Faced with the consumer moral hazard, we should regulate this system rationally, while faced with the risk of opeators’abuse, we should focus on perfect the competition rules outside the system including anti-monopoly law and antitrust law. The solution to the cultural barrier is strongly enhancing consumer education.Most countries in the world adopt three legislative models of the cooling-off period:the loose type of separate regulation system model by the United Kingdom and other most ountries, the semi-uniform style of regulation system model by Japan and the uniform model by Germany and Taiwan in China. Considering the legal characters of the cooling-period system, we should choose the uniform model combined with separate model based on the legislation in China. Specifically, the cooling-off period system is regulated in the consumer protection law and the legal model is general provisions in the consumer protection law combined with particular rules separately. That is to say, the cancellation right of the cooling-off period become the tenth consumer right paralleled with other consumer rights. On the one hand, the applicable fields, applicable conditions and consequence of the cooling-off period system are regulated in the Consumer Protection Act in China, on the other hand, the particular rules about this system is regulated in some particular laws such as door-to-door sales law and timesharing law and so on.Taking into account the scope of this system in China, it can not be widely used in all areas of the consumer transactions and limited to some specific transactions. Particually, the coverage of the cooling-off period are following fields. Firstly, it can be used in some particular sales such as door-to-door sales and distance selling and so on. in this areas, consumers and operators are often lack of adequate communication due to the special nature of the transaction time or location, so the consumers are more vulnerable to make the irrational judgments effected by the high-pressure selling techniques. Secondly, the scope should include distance trade areas that rely on the means of communication such as telephone, fax, email and media services and so on. In this type of transaction, the contractual parties can not be present at the same time and the negotiation and signing the contract should be completed with the help of certain means of communications. Therefore, the consumers can not accurately check the goods before they receive it, which cause obvious asymmetric information in this type of trasaction. Thirdly, the scope must include the field that involves the complex subjects of contract such as installment sales and insurance and commodity trading fields and so on. In such selling, most consumers can not change the terms of the contracts and the negotiation time is very short, so they can not fully anticipate the financial burden caused by the contract. Moreever, the consumers will make irrational decisions and bear the heave long-term burden to contractual obligations because of the long period of contract and large amount and unfair terms of contract.The applicable conditions of this system include its period, the informing obligation of operators and the conditions for the consumers’ exercise of rights. We should use the principle which is "fair as the first and taking into account efeciency" as the gilding ideology when we build this system, that is to say, on the one hand, we should pursue consumer protection that can achieve the goal of fairness and justice, on the other hand, we should at the same time pay attention to the efficiency of transactions to avoid excessive burden and costs of the operators, which can urge consumers to exercise their rights. We should adopt the way of punishment and deterrence in order that the operators can fulfill their obligations initiatively. Specificly, the punitive liability should be introduced in this system and its constituent elements should only include subjective fault and illegal behavior, not including the dagages to consumers. In addition, we can use the flexibility amount model for the punitive liability that combine minimum amount with maximum amount. In the end, we should insist on truly legal consequences whiout payment, which means consumers will not charged with any sort of payment for feess even if they cancel the contract. Only this way can encourage consumers to "cynical" and thoroughly enjoy the right. |
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