Study On Legal Status Of The Winning Promise And The Right Of Revocation

As the reform of China's economic system deepens further and economy expands, myriads of cutting edge promotions modes and consumption modes spring up like mushrooms. The legal relation between merchant and consumer is hard to be confined into the simple buying/selling relations. On condition that no purchase or performing any specific act is required, it is usual that consumers are informed of a winning notice (or promise) by merchants. From a legal perspective, to determine the legal status of the winning promise and whether the promiser is entitled to the right to revoking the promise is crucial for interest distributions between merchant and consumer. The issue here is, however, not being paid enough attention to in either theoretical or practical fields yet.For the reason that there are no relevant laws or regulations regarding this issue, German and American laws are always of substantial reference value. By putting the same question raised above into those countries'legal contexts and analyzing the core values behind the law itself, our goal is to find the answers to the issue in China, with both countries'legal practices shedding light on it. The ultimate key to address this issue is to define the winning promise in the legal context. This paper is trying to categorize it within the current legal logics in China, thereby finding its compatibilities and inconsistencies. On the basis of comparatively analyzing the German and American laws, this paper arrives at its conclusion through weighing and balancing the protected interests between promiser and promisee.It is concluded that the definitions of both the unilateral civil legal act and the offer in the context of contract apply to the winning promise without any substantial problems and what is only left to do is to adapt it to other relevant laws and regulations for better compatibility; more important, the question whether the right of revocation shall be granted to promiser: we oppose granting the right without limits and propose a limited right on the part of promiser. The reason that the revocation right should be restricted neither lies in the current framework of law and its legal status, nor the need for the protection of reliance interests, but the disequilibrium between promiser and promisee and the need for the healthy order of market. Therefore the principle of the public law is adopted to give the promisee the preferential treatment, in attempts to restore and maintain the healthy market order and encourage deals.This paper is divided into four parts:The first part starts from the definition of the winning promise. Moreover, the comparisons with the two similar concepts - the selling with a chance to win a prize and the advertisement with a reward– are introduced; the definition and characteristics of the winning promise are also discussed.The second part is discussing the possible results– which legal category the winning promise shall belong to - if being considered in the framework of the civil law family and current legal system in China. The conclusion shows that the winning promise is able to fit into the groups of both the unilateral civil act and the offer, but both classifications have their own shortcomings, which require certain adjustments and fixing in law, such as restricting the right to revoke the promise, presuming the acceptance, etc.The third part is to discuss the winning promise under the context of American law. By analyzing the relevant concepts– the unilateral contract, the promise to make a gift upon conditions, the application of the promissory estoppel, we find out the promise to make a gift upon conditions is applicable; despite that the promissory estoppel cannot be triggered, we should apply the same principle to the winning promise as it allows the executory charitable donation to be enforceable even without the showing the consideration and also probe into its logics. The last part is analyzing and summarizing the legal status of the winning promise and, by exploring the vital law-protected values on both basic and upper levels, boils down to the final conclusion: learning from American legal logics and German civil law legislation practice, going far beyond the basic interest assessment system between promiser and promisee, considering the inequality between them and social function of the economic activities, under the guidance of the principle of good faith, and restricting the right to revoke the promise. Besides, this paper is further discussing the specific application of the right of revocation, such as how to coordinate it with the Anti-unfair Competition law and how to restrict it in detail.