Research On The Legal Application Of The System Of Cooling Period In Franchising

The cooling-off period system is an imported product,first appeared in the UK,and is applicable to the door-to-door marketing model of no-shop.It allows consumers to return unconditionally within a certain period of time.It is an exception to the principle of “contract must be observed”,also known as “repentance period”.","hesitation period","cooling period".Today,most countries are beginning to apply the cooling-off system to their national laws.In the United States,the Federal Trade Commission has introduced the Trade Regulations Rules.Here,we talk about the “cooling-up rules for selling at home or selling in other places.” In addition,the US state legislatures have also issued a series of The laws and regulations of the cooling-off period are designed to give the franchisees 5 or 10 days before the formal signing of the franchise contract to ensure that the franchisee can think carefully and avoid impulsively signing the contract.In addition,it can avoid the waste of judicial resources and ensure as much as possible.Substantial fairness.China originally introduced a cooling-off period system in direct sales.Article 25 of the Direct Selling Regulations,which was implemented on December 1,2005,allows consumers to have 30 days to consider and observe quality in case of regret,in order to solve the transaction.The problem of information asymmetry between the two sides.Subsequently,Article 12 of the “Regulations on the Administration of Commercial Franchise” promulgated by the State Council in 2007 also provided for the cooling-off clause,which gave the franchisee the right to terminate the contract unilaterally,but it only confirmed the existence of the cooling-off period,but it was not specifically applicable.The relevant regulations have caused great confusion to judicial practice.In this context,there have been a series of cases in which the results of the case are similar,but the judgment results are not uniform,resulting in a different judgment result,such as "Li Honglin and Chongqing Chaotianmen Catering Management Co.,Ltd.franchise contract dispute case" and " Cai Yong v.Jingweixuan Investment Management(Shanghai)Co.,Ltd.".Based on this,in order to prevent the above situation from reappearing and let the cooling-off period clause be fully exerted,this paper has carried out a comprehensive study on the cooling-off period system in the franchise,and gave reasonable suggestions and countermeasures for rationalization.The development of practical work.This article expands from the following four sections:The first part is the academic basis for supporting the cooling-off period system.Firstly,this part analyzes the connotation and development trend of the cooling-off period system with the background of origin as the entry point,and then introduces the application of the cooling-off period as reflected in the case of "Liao Xuanping and Chengdu Daju Bafang Brand Management Co.,Ltd.Franchise Contract Dispute".From the asymmetry of the information of the franchisor and the franchisee,to clarify the need for a cooling-off period in the franchise.Finally,an analysis of its general principles and its unique principles of protection of trade secrets and flexibility is presented.The second part is the type study of the cooling-off period system in franchising.The article clearly pointed out that the model export-type franchise model should apply the cooling-off period system,while the product-agent franchise model should not apply the cooling-off period system.The relevant judgment criterion is whether the franchise information held by the franchisee is comprehensive.Legislation should be improved from the provisions that highlight the obligation of information disclosure,and then clearly define the content and methods of information disclosure.The third part is to explore the current development of the cooling-off period system in franchising.It will discuss the main body of exercise,the mode of exercise,the limitation of application period,and the applicable consequences of the cooling-off period system in the franchise,and point out the problems existing in the application of the law,such as the general and fuzzy content of the provisions,the lack of treatment consequences,and the implementation.The lack of departments,etc.,should be clarified at the legislative level to ensure that the application of the cooling-off period system is more scientific,rational and operability.The fourth part is the study of legal liability for violation of the cooling-off period system.Failure to stipulate the cooling-off clause in accordance with the law does not necessarily lead to the invalidation of the contract,and the franchisee may still unilaterally terminate the contract in a cool-off period.In case of breach of the agreed cooling-off clause,that is,the agreement to exclude the application of the cooling-off period shall follow the principle of autonomy of will.In terms of improving the approach,the different legal consequences of violations of the cooling-off clause should be clarified at the legislative level.