The View On The System Construction Of The Extension Of Credit Consumer's Right Of Defense In China

The combination of social&economic development and the progress of science and technology have prompted the emergence of credit card businesses.As a new payment tool,credit card has its own advantages over cash payment.However,it has become an unavoidable problem that the emergence of business disputes and the challenges of new payment methods such as mobile payment with the rapid development of credit card business in China.However,in order to effectively reduce credit card disputes and actively face the challenges of mobile payment,it is essential to construct and perfect certain credit card mechanisms to protect the credit card consumers.The extension of the defense right as one of the effective protection of the credit card consumer's rights has highlighted its importance under the circumstances.The meaning of extension of the right of defense is that the cardholder can submit his own right of defense against lender(card issuer)which arising from a breach of contract by the party to the contract of sale.Looking at western developed countries,it is a trend to support the extension of the right of defense with credit card legislation.On the contrary,our country China,regardless of legislation or judicial practice,has severed no rights of defense to credit-card consumers without exception.Author wants to verify the necessity of introducing the system extension of right of defense by empirical analysis,comparative analysis,document analysis and so on.Different from traditional trade,credit card transaction involves the implication on rights and interests at least tripartite parties,card issuer,merchants and card holder,what makes a close relationship between merchants and card bank,and what's more,makes the rationality of card holder to have extension of the right of defense.However,our country has cut off the extension of defense rights in legislation and in the judiciary as well,which not only violates the trend of international legislation but also the concept of consumer protection in China.Therefore,it is imperative to introduce the extension of right of defense system into China.While in order to prevent cardholder from abusing rights,we must impose certain restrictions on the system,that applied in the scope of cardholder's consumer behavior based on consumercredit.And the cardholder is required to have the right of defense in accordance with the contract of sale and purchase and must have exercised corresponding rights with the merchants.It must be made in writing,though the cardholder's time limit on the exercise of the right shall not be imposed on the time and method of the request.For the final applicable legal effect,it should be limited to the effect of impeding the repayment claims of card issuers.By limiting the above-mentioned system of defense and extending rights,it can effectively avoid over-inclination of rights protection and make the system fully utilized.For the final applicable legal effect,it should be limited to the effect of impeding the repayment claims of card issuers.By carrying out the aforementioned restrictions on the system of extension of right of defense,it is possible to effectively avoid over-inclination of rights protection and make the system fully utilized.Except preface and conclusion,this article mainly through four parts discusses the introducing of system of extension right of defense into China.The first part introduces the legal relations of credit card on extension of right of defense,involved the subjects,objects,contents and nature of the relevant foreign legislation,and focuses on the four kinds of "debt assignment" between the card issuer and the merchants.While Card issuer,holders and merchants generally relate only to the rights and obligations of both parties to the contract,but it inevitably involves in the tripartite rights Obligation due to offering and paying between card issuer and merchant,which is also the basis for studying the existence of "Implication" in the extension of the right of defense.The second part analyses the protection status of extension right of defense for credit card consumers of domestic and overseas.Neither legislation nor judicial practice has cut off the right of defense of credit card consumers without exception in domestic.While developed countries take it as the trend of credit card legislation.This comparison reflects absence of relevant legislation in our country.To support the extension of the right of defense is not only the necessary measures to protect cardholders but also an important reflection of the trend of international legislation.The third part studies the rationality of extension of right of defense,mainly from two aspects: theory and practice.The theoretical aspects: explaining in terms of the relevant rationality theory,the economic integrity of the German law,and the validity of the format of contract terms.In practice,it mainly involves the interests between card issuers and merchants,and provides reasonable support for the establishment of the extension system of defense rights.The last part,core of this article,is to construct extension system of the right of defense concretely.The system is on the basis of supporting the extension of the right of defense,balancing the interests of cardholders and card issuers,to avoid abuse of cardholder and overburdened of card issuers,to set certain restrictions for the extension of the right of defense in terms of scope,conditions of exercise and legal effects.