Comparative Study On Consumer Protection At Conclusion Of The Contract On The Internet

As Internet use in private households continues to increase, so too do the number of consumers making purchases over the Internet. Against this background, this present research was to compare the consumer protection with particular emphasis on the conclusion of contracts on the Internet under English and German law, and to suggest which of these experiences may be transferable to China. For this purpose, English and German law are presented and analyzed under consideration of the relevant European private law.The paper is comprised of the preface, the conclusion and the main body made of 6 chapters.Chapter One focuses on consumer protection. The consumer protection in the Internet is guided primarily by the economic interest of creating a thriving European market. In European, English and German law the consumer is considered vulnerable. The concept of consumer protection in European and English law is based on the "situational needs for protection" of the consumer in the field of distance selling. In the German law it’s based on the "general needs for protection" of the consumer.Chapter Two is about the definition of consumer and trader. The definition is inconsistent in the European, German and English law. In the past, there are two definitions of consumer side by side in English law. Although all definitions use the role-specific distinction method, which is according to the type of transaction, there are different opinions in the classification of consumer or trader in individual questions.Chapter Three mainly discusses the conclusion of contracts on the Internet, including the inclusion of standard terms in contracts.The conclusion of contract in the Internet is hardly influenced by European specifications, but is subject to the traditional national contract law. Despite quite different legal systems, the English and German law practically incur predominantly similar solutions. The conclusion of contract on the Internet is generally in both jurisdictions effective. Webpage of trader is classified regularly as "invitatio ad offerendum" or invitation to treat, so that the offer comes from the consumer. Acceptance of trader is in German law, also according to the majority opinion in English law, with its access effective. Typical differences in the conclusion of contract between the common and the civil law have practically no effect on the internet, such as the rules for right of withdrawal or access of a declaration of will. Inclusion of standard terms in contracts also provides practically similar requirements in both jurisdictions. Internet auctions are not governed as classic auctions by German law, while their position in English law is sofar unkown.Chapter Four analyzes the company’s information duties. They come from the Distance Selling Directive and E-Commerce Directive. The Distance Selling Directive was transposed almost literally in English law while adding a few additions. The German law has extended the pre-contractual and contractual information duties and provided a model instructions for information concerning the exercise of the right of withdrawl. In both jurisdictions pre-contractual information requirements can be satisfied in a Webpage. Language requirements are derived from the principle of transparency, the English law is less demanding than the German Law. The fulfillment of contractual information duties is not possible through the provision of information on the Internet. Overall, many questions remain unanswered about the content of information duties and their fulfillment, but German courts have begun in a number of individual decisions to answer this. In English law a first implenmentation of the regulations followed by the guidance of the Office Fair Trade, judicial decisions are not currently available. A basic problem of information duties is to be feared the danger of information overload for consumers. The non-consumer specific requirements of the E-Commerce Directive were taken over from the same content in English and in German law.Chapter Five investigates the consumer’s right of withdrawal on the internet. This right guaranteed in the Distances Selling Directive have accordingly implemented the English and the German law. The declaration of withdrawal is regulated in detail in English law. In English law the consumers can send the declaration to the last known address of trader. In German law, the withdrawal may also implicitly explained by return of goods or can be replaced by the right of return. The withdrawal period in English law corresponds to the provisions of the Directive, while it was substantially extended in German law. The effects of withdrawal were also designed individually in both jurisdictions. In practice, however, both jurisdictions regularly made contractual or legal duty to return the goods by consumer according to English and German law. The return costs can be imposed on consumer via contract, under German law, but only from a value of 40 Euros. The exceptions to the right of withdrawal were taken over in the English and German law. In German law Internet auctions are regularly not excluded from the right of withdrawal. In English law, this is so far unclear, but tends to be the case.By drawing from the European law, in Chapter Six we suggest that we can use elimination method to define consumers and traders, namely using non-business as their characteristics, and the legal person should explicitly be excluded from consumer’s concept in Chinese law. Then through the further assessment of the regularity of transactions mode, proposed that China should redefine the transaction mode of c2c and b2c business. China acknowledges that the online contracts have the same legal effect with the traditional contracts, we suggest that the webpage provided by traders should be regarded as an invitation to treat rather than an offer, so that the trader will have an opportunity to verify the inventory on hand and examine the qualification of the potential purchaser. While making the online contract, the standard terms will be effectively incorporated into the contract when the "click-wrap contract" is provided by trader and confirmed by consumer, its legal effect has also be acknowledged in China’s judicial practice. As China has not regulated the due time of information duties by traders, we should require them to provide customers with information proactively. After the contract has concluded, traders should keep consumers informed of the latest information of the contract and use a sustainable way to store it. The newly revised "consumer protection law" initially introduce the "no-hassle return policy", but it still has not regulated the duties of trader to inform consumer of their right of withdrawal. Learned by the European law, we suggest China should set a mode of the withdrawal system by legislation, which traders should carry out the obligation to inform consumer of the "return of goods without reasons" policy. If they fail to do so, we can consider to lengthen the due time to warn and punish them, thus enhancing the importance of the law.