The System Of Consumers' Right Of Withdrawal In German Law And Its Reference To China

The concept of the consumer’s right to withdraw is brought up by the German scholar in the 21th German Jurists Convention (21. Deutscher Juristentag) in 1891. Although the consumer’s rights to withdraw is not firstly prescribed in German Law as a legislative system, instead, it was established by Leasing and Sales Act in England in 1964 and then it was established in Europe, United States, Japan, Taiwan District and developed in different areas. The consumer’s right to withdraw is more completed and mature in German Law. As such, it has more reference value for China due to both countries have the same legal system which is the continental legal system.As such, this article would use the methods of historical analysis and comparison and analysis, on the basis of discussion of the historical background, the system variation and the system merit and to summarize the defects of such system in China. Further to the reference to the relevant rules under the German law and considering the specific situations and practice in China, this article would attempt to provide the advice relating to the completion of the system of consumer’s right to withdraw in China.Generally speaking, this article would divide into four chapters to discuss the system of consumer’s right to withdraw:The first chapter will introduce the historical background and system variation of the system of consumer’s right to withdraw through the method of historical analysis. Like other countries in the world, the system of consumer’s right to withdraw in German is created and developed with the social division of labor and the development of the commodities economics and this system is prescribed in the various special regulations relating to the consumer protections prior to the revolution of German obligation law. The content relating to the system is not consistent and not coordinated for the specific construction of the systems. As the disadvantage of this kind of legislation appear, and with the promotion of the orders of European Union, the disperse regulations relating to the consumer’s right to withdraw are collected to the Obligation Law under the German Civil Code and as such, reinforcing the protection of the rights of the customers. In the meanwhile, in case the abusing of such right by consumer and in order to balance the interest between the consumers and merchants, the legislator in German has prescribed the scope of the consumer’s right to withdraw and specific rules to apply such system.Chapter two mainly analyzes the legal nature and the specific merit of the system of consumer’s right to withdraw in German Civil Code, the discrepancy between the rules converted from the European Union Consumer Rights Order in German law and the rules in the laws prior to the amendment, and introduce the understanding of the German scholar relating to such system. The majority of the German scholars consider the consumer’s right to withdraw is a special kind of the legitimate right of formation. In order to prevent the consumers from abusing such right, and in order to balance the interest between the consumers and merchants, the legislator in German has prescribed the scope of the consumer’s right to withdraw and specific rules to apply such system.In Chapter three, the author firstly introduces the legislation development of the consumer’s right to withdraw in China, differing from Germany, the system of consumer’s right to withdraw in China does not experience the variation that the disperse rules in single regulations are collected to the civil code. Instead, it was directly prescribed in the newly revised Consumer Rights and Interests Protection Law. Secondly, through the comparison of the consumer’s right to withdraw and the withdraw right and contract termination right in the PRC law, the author analyzes the discrepancy between the consumer’s rights to withdraw and the aforesaid withdraw right and termination right in PRC law and makes the conclusion that the consumer’s right to withdraws shall be deemed as the legitimate formation right which is independent from the withdraw right and termination right. At last, the author analyzes the defects and shortages of the system of consumer’s right to withdraw in the Consumer Rights and Interests Protection Law in China.With the reference to the relevant rules in German Law, the author in Fourth Chapter provides the advice related to the completion of the consumer’s right to withdraw, which include:to explicitly state the concept of consumer and merchant, properly expand the scope of legitimate applicable of the withdrawal right, further to prescribe the goods and service scope that cannot be agreed to exclude the application of consumer’s right to withdraw, on the basis to prescribe the merchant’s obligation to tell and to prescribe the time period to use the consumer’s right to withdraw and the starting time to calculate the period, to limit the use of the withdraw right to the consumer’s declaration of intention to the merchant and prescribe that the consumer shall return the goods to the merchant after its declaration of intention and within a certain time period, and prescribe that the merchant shall return the contract price to the consumer after obtaining the consumer’s declaration of intention within a certain time period, to further prescribe the concept of "completed and good" of the goods, and prescribe the burden of the transportation fee and risks for the returned goods in a more reasonable way, and gradually to build the safeguard system for the use of the withdrawal right in China.