Practical Issues Of Cooling-off Period

Within the cooling-off period specified by the law, consumers have the right toterminate contract unilaterally and unconditionally, setting such a period is aiming tolet consumers make the right choices in a period that they can think rationally withoutexternal pressure and protect consumers’ rights and interests against infringement.Since the1960s, in order to balance the relationship between operators and consumersin particular transaction modes, many countries have stipulated the clauses oncooling-off period. In2013, China law officially legalized the cooling-off period inthe Law on the Protection of Consumer Rights and Interests (Amendment), which isof great significance for promoting the consumer protection. This paper will discussthe theoretical basis of cooling-off period and analyzes its structure and someproblems that might be encountered in the concrete implementation and puts forwardsuggestions to solve the difficulties in running cooling-off period in China.Except the introduction part, the structure of this paper is as follows：The first chapter discusses the theory of cooling-off period. In order to bedistinguished from the right of rescission in Contract Law, the right corresponding tocooling-off period should be better named as “right to regret of consumer”. It is anew type of consumer right in economic law, which possesses features of legality,unilaterality, non-reason and exemption. From the perspective of historical evolutionof cooling-off period, its range of application has continuously extended, and it isclosely related to particular transaction modes. Thus it should take national conditions into consideration to set cooling-off period. Though cooling-off period is abreakthrough of the principle of contract－obeying, it can be supported by ConsumerParamountcy, Legal Paternalism and Contract Substantial Justice Theory. Based oneconomic analysis of cooling-off period, its benefits outweigh its costs that can becontrolled through its design. After synthesizing three theories and economic analysis,the legitimacy of cooling-off period has been expounded and proved.The second chapter is about the operation situation of cooling-off period inChina. From the original legislation exploration of local laws, regulations andnormative documents to the juridical practical operation of the range correlating toonline shopping and insurance contract, the foundation of cooling-off period has beenlaid in China. Due to, however, some defects such as low legislation effectivenesslevel and ambiguous contents, its maneuverability is not ideal. China had notestablished cooling-off period until the Law on the Protection of Consumer Rightsand Interests (Amendment) was produced, and made specific provisions based onChinese national conditions about its range of application, rules of application andlegal consequence.The third chapter summarizes the difficulties during the operational process ofcooling-off period in China. First, from the perspective of the whole legislationsystem, there are no laws and regulations correlate with cooling-off period. Second,from the perspective of existing problems of legal application, there exist someproblems including the ambiguity of applicable transaction modes of cooling-offperiod in the range of application and the undefined conditions of agreed exceptions.In the aspect of applicable rules and regulations of cooling-off period, there is a lackof notice obligation of operators and the starting time of the period that consumersexercising their right to regret is suspected. In the aspect of legal consequence, there isno definition standard for “the goods should be in good condition” to limit consumerto exercise the right to regret and it is not clear how to deal with commodity wastage.Finally, from the perspective of the safeguard measures of cooling-off period, thereexist problems including the consumers cannot gain enough administrative protection,the self-discipline function of industry association is not fully played, the responsibility of consumers’ association is not fully implement and the consumptiondispute settlement mechanism is not sound.The fourth chapter discusses the solutions to the practical problems ofcooling-off period in China. With respect to the three aspects of the problems above, itputs forward suggestions: first, form a more completed set of relevant laws andregulations, produce enforcement regulation of the Law on the Protection ofConsumer Rights and Interests (Amendment), carry out legislation in the specialfield, and modify relevant contents of Contract Law and competition laws; Second,before producing enforcement regulation of the Law on the Protection of ConsumerRights and Interests (Amendment) and legislation in the special field, the judicialapplication can solve the existing problems through legal methods. Third, perfectrelevant security system and measures, it is highly suggested to set up specializedadministrative machinery to protect consumers. Industry associations can perfect theirself-discipline system by formulating unified standards and regulations. Consumers’association should implement and enforce their eight major responsibilities, andestablish a specific mechanism to settle consumer disputes, such as consumer disputearbitration system, so as to resolve consumer disputes quickly. With the measuresmentioned above, cooling-off period can run well in China, and consumers will begenuinely endowed the right to regret.