| On March 15, 2014,Law of the People’s Republic of China on the Protection of Consumer Rights and Interests was promulgated, Article 25 of this law provides that consumers have the right of revocation in purchase contract in internet, television, telephone, mail order and other trading patterns,which breaks the principle of abiding by agreements of the traditional civil law. It is highly important to protect the rights and interests of consumers. This article discusses the right from two angles of the theories and actual situation,and analyzes the controversy in theory and problems that may be encountered in practice. I will learn from legislative experience of comparative law, in order to improve the right of consumers from the theory of explanation.The first chapter is an overview of the right of revocation of consumers. there is no uniform definition for the rights, The author thinks that " the right of revocation of consumers " can reflect its intrinsic value and not be confused with the other rights of current legal system; secondly, I will analyze the legitimacy of the right, it seems that the right are in conflict with the principle of contractual freedom and abiding by agreements on the surface. Why legislators give consumers the right? The author thinks that its legitimacy foundation is the consumer’s means formed be stunted or maybe be stunted. The author will analyze the legitimacy from both internal and external perspective; last, I will analyze the legal nature of the rights, It is generally said that the right is a kind of form right,but there is a dispute between the right of revocation and termination right in theoretical cycle. In the code civil revision process, the provision of the special law needs to be incorporated into the system finally.To realize the link of the right and our current legal system, it is particularly important to discuss the legal nature of the right, otherwise it will cause confusion of our legal system. The author thinks that it is legal relief right.The second chapter is difficult problems in practice.On the basis of four cases of reality in our country, I will sum up the problems of the enforcement of the article 25 of this law encountered in practice in our country, including the scope of the right,the exercise of the rules and the abuse of the right in three aspects. Specifically, the specific trading patterns and exceptions of the right are not clear, the way of exercising right needs to be clear, there is a lack of judgment standard of the premise of exercising right. the starting point of the period of exercising right and the cost need to be clear. And there is abuse of right in online shopping in practice.The third chapter is the study of the comparative law, mainly aiming at the problems encountered in practice, I will study the provisions in Germany, the UK and the European Union,in order to summarize the mature legislative experiences, and improve the right in our country.The fourth chapter is the improvement of the right in our country, it is the core of this article. I will analyze the scope of the right,the exercise of the rules and the abuse of the right in the perspective of article 25 from the theory of explanation. The author will combine the provisions of the contract law and the mature legislative experiences of comparative law, in order to solve the problems in practice from the theory of explanation.First, how to explain the word "such as" in the scope?Whether is suitable for the "service" in addition to the "goods" ?How to affirm "other unfavorable returns according to the nature of goods" and "confirmed by the consumers" ?Can consumers exercise the right in the goods that are purchased overseas? The author thinks that the right is sutiable for door-to-door selling, direct selling and sutiable for "service".To rule out the applicable of the right, we should consider "the value of goods" 、 "repackage cost and complexity", " recognition difficulty and loss degree of the presence of consumer rights abuse ", etc., and reference comparison method in the concrete practice.If operators rule out the applicable of the right without "customers’ s confirmation",the standard terms shall be applicable.When the goods are purchased overseas,we should distinguish whether the operators need to purchase now. Next,How to define the judgment standards of "good" ?When the seven-day return period start?Whether the first freight will be deducted from the refund amount?Whether can operator charge a fee? First, consumers can choose to return or apply which essence is inform provisions of contract law.Secondly, we can determine whether the goods is "intact" based on receiving and inspection steps one by one.Thirdly, we calculate scheduled period from the day after the date that goods were signed in the logistics system.Fourthly, consumers pay the freight, but when the goods are exemption from postage.the sellers pay the freight for the first time;For handling fee, if the operator remind consumers before the contract in reasonable way,I think it can be recognized. Last,How to prevent the abuse of rights? The author thinks that trading network real-name credit evaluation system should be set up. |
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