Discussion On The Attributes Of The Consumer Right As A Fundamental Right

After the Second World War, the change of the role of the country from the passive night watcher to the active guarantor, the development of the perception of human rights from freedom to social rights and the prominence of the weak position of consumers not only makes consumer problems as common social problems, but also makes the consumer right enter into the field of fundamental rights. However, the majority of domestic and foreign scholars do research from the angle of department law, making concrete analysis of the problem. There is no full and tenable discussion about the consumer right on the level of the fundamental right. Therefore, it is necessary to make further study about the consumer right from the perception of the fundamental right. This dissertation, taking article 38 of Charter of Fundamental Rights of the European Union as an example, illustrates the necessity of the consumer right as a fundamental right, the status of the consumer right in the system of fundamental rights, the evolution and development of the status of the consumer right in European integration process, the stipulation of the consumer right and its legal effects according to the Charter of Fundamental Rights of the European Union, in order to clarify the attributes of the consumer right as a fundamental right. The discussion on these questions mentioned above is reflected in the four chapters as follows:Firstly, Chapter 1 of the dissertation generally discusses the necessity of the consumer right as a fundamental right and its position in the system of fundamental rights, which constitutes the premise of the dissertation. The consumer right as a fundamental right is the result of the development of society. The attributes of the consumer right as a fundamental right are rooted in the social basis of'social country' and'welfare country', the basis of human rights of the integration of freedom rights and social rights, and the correction of the weak position of consumers with the purpose of the socialization of consumers. Through the criticism about several theories of human rights and the analysis of the constitutional provisions about the consumer right in some countries, the consumer right is an independent fundamental right based on the value of equality with the purpose of improving the weak position of consumer and achieving the equality of consumers and producers.On the basis of the general illustration of the attributes of the consumer right as a fundamental right, the core of the dissertation is the discussion of Chapter 2 about the evolution of the status of the consumer right in the European integration process and the European model of the consumer right according to article 38 of Charter of Fundamental Rights of the European Union illustrated by Chapter 3 and Chapter 4. Specifically, Chapter 2 clarifies that the consumer right is officially incorporated into the system of fundamental rights of the European Union by article 38 of the Charter, and thus has transformed from the social policy to the social fundamental right equal to the freedom of trade and business, following the subordination of the consumer right to market integration project in the era of European Community and European Union. Chapter 3 illustrates that Article 38 adopts the form of the direct creation of new type of fundamental rights, constituting the social fundamental right with consumers as the subject of right and European union and member states as the subject of duty, in order to clarify the rights and interests of consumers and emphasize on the positive improvement of consumer protection by the internal market. Chapter 4 discusses the effects of the consumer right stipulated by the Charter and points out that the right is the combination of subjective right and objective principle. The effect of the consumer right as the subjective right is shown by the fact that a consumer is entitled to institute a constitutional proceeding to enjoin an infringement, while the effect of the consumer right as the objective principle is manifested by the judicial review of the European Court of Justice about the legislative and executive actions taken by European Union and member states.Based on the summarization of the contents of the dissertation, the last chapter analyzes the significances of the consumer right in improving the weak position of consumers and achieving the aim of consumer protection. The stipulation of the consumer right as a fundamental right is not only the powerful declaration of the right, but also the last safety net for consumers to resort to redress. What is more importantly, the equal status of consumer right and freedom of trade and business enjoyed by producers will really improve the weal position of consumers and thus achieve the equality between consumers and producers.The creative point of the dissertation is the illustration about the attributes of the consumer right as a fundamental right combining the method of general analysis with the typical example from the perception of fundamental rights. This dissertation chooses the consumer right as the point of entry, combining the evolution of the consumer right, the construction of the internal market and the development of European Union as the multilevel political entity as well as building the link between the subject and the perception of fundamental rights, the dual attributes and legal effects of fundamental rights, fully and deeply discusses the attributes of the consumer right as a fundamental right and satisfies the needs of the protection about consumer rights.