The Theoretical Basis And Institutional Construction Of Withdrawal Right

“Consumer Protection Law" ushered in the first revision in20years in2013, thisrevision has its deep social background. First of all, as the extension of China’smarket economy development, consumers buy goods and services in the breadth anddepth as well as increasing consumer awareness, consumer disputes is increasing inthe purchase of goods and services. At the same time, accompanied by a decline indoor-to-door sales and direct sales, online shopping show blowout type developmentin recent years, the traditional business model and consumption pattern has broughttremendous impact. As a kind of people’s daily life in consumption patterns, it isbecoming more and more essential.The online shopping in providing moreconvenient and more affordable prices trading to consumers, at the same time, hasalso produced some new problems.This amendment, the most concern than the "withdrawal right system" into the law,the revised consumer protection law,(hereinafter referred to as the new consumerprotection law), in the twenty-fifth of the law has provided the withdrawal rightsystem, this article is divided into three sections. The provisions of the first paragraphof the withdrawal right and applicable range of statutory exclusion situations; theprovisions of the second paragraph of agree to exclude situations; provisions of thethird paragraph of the burden of the cost of the exercise of the right to produce, theexercise of the right to return and consumer obligations. the interpretation of theexercise of rights for a period of7days, the provisions in article twenty-fourth.The earliest regulation about the withdraw right is arised in the German law, toregulate the door-to-door sales, then in the credit field also have the correspondingprovisions. The withdrawal right system in a series of instructions promulgated by theEuropean Union has been developing and perfecting, become an important means tosafeguard the legitimate rights and interests of consumers. The European Unionthrough a series of instructions for certain types of transactions, such as door-to-doortransactions remote transaction, consumer credit, payment, timeshare and insurancecontracts have provided complete withdrawal right system, China’s introduction of a long-standing right of withdrawal system, academic circles debate, opponents arguethat the right of withdrawal system a great setback for the safety of transactions andthe market order, and in theory subject to the formalism of contract law restrictions,can not get rid of promise keeping constraints, more and more inclined to seek theinterests of consumers in the contract law and protection methods; supporters say theessence of the right to withdraw the consumer is "rational return true and freeexpression all transactions, the different forms of the fundamentally hinder theformation of consumer true meaning, essence of contract law provides theoreticalsupport for the right to withdraw, and ultimately the withdrawal right system after theprescribed long discussion and brewing a new method in china.The withdrawal right system did not leave the contract law on consumer protection,but in some occasions the termination of the contract and the liability for breach ofcontract is not suitable, the security and safeguarding the interests of consumers. Thewithdrawal right system is a special case, this point from the right of withdrawal ofthe application can be reflected, the right of withdrawal is not applicable to all typesof transactions, the types of application with a specific.Based on the theory of the right to withdraw and legitimacy of the EU andAmerican scholars views are not consistent, the scholars of our country is the criticalinheritance for foreign scholars point of view, there is no evidence of systematic,Professor Sun Liangguo in the "How consumers have the withdrawal right ",to thelegitimacy of the withdrawal right system made the system construction in nature,and that the true and rational consumer protection means that the withdrawal rightsystem is the ultimate meaning of existence.The right to withdraw from the theory to practice, need to build a reasonablesystem, the core is the balance of consumers and the interests of the seller, how toprotect the transaction security and efficiency in safeguarding the interests ofconsumers at the same time, to prevent excessive influence legal squeeze effect. Inaddition, about the scope and time is also worth exploring.The new consumer protection law formally implemented in March15,2014, a newsystem of government will need to be perfect, the current law is vague and general,need to follow the judicial interpretation of the supporting and follow up, however, and the significance of its positive role is self-evident.