Research On The System Of Consumers' Right Of Rescission

The Law on the Protection of the Rights and Interests of Consumers(hereinafter referred to as "Consumers' Law"),which was amended and took effect on March 15,2014,for the first time stipulated the system of recession and brought the right of recession into the legal system of consumers' rights.However,the "Consumer Law"only made the principled provisions of the consumers' rights of recession,not involving the specific application of the rules,which results in many problems in practice.To improve the system of consumers' right of rescission,on January 1st,2017,the State Administration for Industry and Commerce issued "Interim Measures of no-hassle return of online shopping within 7 days"(hereinafter referred to as "Interim Measures of Return"),which took effect on March 15th.Interim Measures of Return specified the system of the right of recession,while there are still some applicable issues have not been resolved,which means the system consumers' right of rescission still needs to be further improved.Based on the above situation,this dissertation carried out deep study on the system of consumers' right of recession,expecting to be helpful to the system of consumers' right of recession of China.On the basis of studying the basic theory of consumers' right of recession,this dissertation first teases out the legislation provisions of the system of consumers'right of recession in China and analyzes the existing problems,then studies the legislation experience of the system of consumers' right of recession in Britain and Germany,and last on the basis of legislation experience of the two countries above,further put forward countermeasures to the existing problem of the system of consumers' rights of China.This dissertation consists of the four parts as follows:The first part is the overview concerning the system of consumers' recession.This part of dissertation firstly clarifies the meaning of the right of recession,and then,through the comparative analysis,demonstrates how the right of recession differs from the right of cancelation of the contract,the right to terminate contracts and the sales' return in the "Three Guarantees" regulations.Secondly,this part also clarifies the characteristics of the right to recession,which is,legality,unilateralism,non-causation,non-responsibility.Finally,this part illuminates that establishing the system of consumers' recession is to realize the inclined protection to vulnerable consumers,substantial fairness of contract and the balance of the integrated social benefit.The second part analyzes the existing consumers' right of recession.This part first introduces the current situation of the legislation of consumers' right of recession in China.The legislation on the counter-right of consumers first appeared in the local legislation,thus the provisions of the local laws and regulations on the right of recession were introduced first,and then the analysis of the national level is introduced next.The laws and regulations stipulating the consumers' right of recession include the provisions of the Administration of Direct Selling Regulations,the Consumers' Law and the Interim Measures of Return issued by the State Council in 2005.Secondly,through the analysis and interpretation of the "Consumers' Law"and "Interim Measures of Return",the author mainly analyzes some problems of the system of the existing consumers' right of recession,including the narrow scope of the application of the right of recession,the lack of clarity in the right to the duration of the right,the way of exercising right and the unreasonable,vague consequences of exercising rights.The third part introduces the experience of international legislation on the system of consumers' right of recession.The author chooses to study the relevant legislation of Britain and Germany,which possess the developed legislation of the system of recession,expecting to sum up the experience that can be used for our country.This part first introduces the legal provisions of the system of recession in Britain and Germany,and then analyzes the specific legal provisions of the two countries on the system of recession,including the scope of application,the provisions of the period,the way of exercising and the legal consequences.Finally,it summarizes the legislative experience of our country in further perfecting the system of recession,including the appropriate scope of application of the right of recession,the stipulation of the obligation of the proprietors and the extension of the period of the right of recession,clarification of the period of the return of the goods,explicitness of the subjects of the risk of on-the-returning-way goods.The fourth part is mainly about the improvement to the system of consumers'right of recession in China.Based on the referring to the experience of legislation on the right of recession in Britain and Germany,the author puts forward some suggestions on perfecting the system of consumers' right of recession in our country:first,extending the scope of application of the right—bringing the door-to-door selling and Consumer credit transactions into scope;second,specifying the provisions on the period of exercising the right of recession,such as explicating the"7 days" for seven working days,associating the operator's obligation of informing with starting the computation of period,perfecting provisions the legal consequences of the exercising the right of recession,including the provisions that consumers can claim a discount return when the goods are not perfect because of inspection,and clarifying that the operators should bear the reasonable costs of returning goods and take the risk of damage and loss of goods in transmit.The above is the brief introduction to the main content of this dissertation,which possess both innovation and shortcomings.The innovation of this dissertation is mainly embodied in the following three aspects:First,as the domestic and foreign scholars haven't got a consensus on the title of consumers' right of recession,the author defines the connotation and concept of the rights of recession after studying several different titles among academic circles.Second,this dissertation applies method of the comparative analysis,and extracts recommendations through the analysis between our country and the United Kingdom,Germany on the consumer right of the provisions.Thirdly,targeting the existing problems of application in Consumers' Law and Interim Measures of Return the period of exercise,the way of exercising and the consequences of the law,the author puts forward the solutions.