On Improvement Of Chinese System Of Consumer Right Of Withdrawal

With the development of society, consumer’s structural weakness relative to the operatorbecoming clear and the consumer’s freedom of intent-indication is more and more vulnerableto interfere by the operator. The principle of freedom of contract advocated by the classicalcontract theory is also increasingly unable to adapt to the changes of the situation, andprogressively roads to formal freedom and justice. It is increasingly deviated from the essenceof the principle of freedom of contract, which was amended by the new-classical contracttheory to start to return the real freedom of contract and the substance of contractual justice.Consumer right of withdrawal emerges as the rise of this new contract theory, the purpose ofwhich is to allow consumers and operators to achieve real freedom of contract and substantivecontractual justice. Since the system of consumer right of withdrawal is created firstly bysome countries, the system began to influence all over the world. As far as so far, the systemof consumers right of withdrawal has been greatly improved, with Germany and the EuropeanUnion’s contribution in this regard is particularly remarkable. At present, China’s newConsumer Protection Act (hereinafter referred to as new consumer law) had establishedconsumer right of withdrawal. But the construction of the system is still very rough, andGermany and EU mature consumers right of withdrawal system will not doubt provide a greatreference value for our country. This paper will be presented from the following four parts:The first part: I commented on the formation and decline of classic contractual theory,and the rise of the new-classical contract theory, designing to reveal the principle of freedomof contract advocated by classical contract theory is an almost unlimited freedom of contract.Then I followed the trend to reflect that the almost unlimited freedom of contract haddifficulty to adapt to changes in the situation and evolved into a formal freedom of contractand eventually amended by new-contract theory to start to return the essence of the freedomof contract. Finally I led consumer right of withdraw on this basis.The second part: through the describing of the first part, the theoretical basis ofconsumer right of withdrawal began to sign. This section was a more in-depth analysis of howconsumers right of withdrawal correct the formal contractual freedom and how consumers incontracts to relief when the freedom of intent-indication have been violated, which aimed atdemonstrating that consumers right of withdrawal was on the preservation and compliance with the principle of freedom of contract in real terms. But this was not sufficiently to justifythe legitimacy, because the principle of contractual freedom is not absolute, which is limitedmore and more. And Then I demonstrated that the freedom of contract principle was still afundamental principle of modern contract law. So I eventually prove the justification ofconsumer right of withdrawal.The third part: Firstly, the part had a introduction of Germany and EU legislative processon consumers right of withdrawal. And then took the latest results of consumer right ofwithdraw legislation of the two international subjects, namely, new German civil code and theDraft Common Frame of Reference for European (known as the European civil code draft) asthe breakthrough point, to comparatively study in the construction of consumer right ofwithdrawal system to find their similarities and differences and led problems. And finallyprovide useful inspiration to perfect our system of consumer right of withdrawal.The fourth part: I took the enlightenment attained from the third part as the main line andrefer to Germany and EU system of consumer right of withdrawal and combine with theChina’s concrete practice and the provisions of the new consumer law to set out deficienciesof our consumer right of withdrawal system and make suggestions to perfect it.