Research On Operator’s Notification Obligation In Consumer Contract

In China,regulations on the notification obligation of operators are relatively scattered.Many of the articles seem to be completely legal provisions,howerver,it is not clear what impact the operator’s breach of the notification obligation will have on the conclusion of the consumer contract and what kind of responsibility it will need to bear.As a result,the operating effect of the operator’s notification obligation system is not satisfactory.To solve this problem,we need to sort out the legal structure of the notification obligation system of operators,and try to realize the systematization of the notification obligation.The legal structure of the operator’s notification obligation involves three levels of content: the scope of the notification,the manner in which the notification obligation is performed,and the liability that should be assumed if the operator violates the notification obligation.To determine the scope of the operator’s notification obligation,the following factors should be considered: the scope of the consumer’s right to learn the truth,the nature of the goods or services,the repeatability of the transaction,the transaction method,and so on.The comparative law’s provisions on the operator’s notification obligations are mostly based on the above-mentioned influencing factors.In addition to the general notification obligation as a minimum requirement for operators,special notification content is also provided for special transactions.The lack of general regulations on the operators’ notification obligation in China leads to a deviation in correspondence between the operator’s notification obligations and consumers’ right to know,which actually restricts the realization of the original intention of the operator’s notification obligation system to alleviate the unequal information ability and contracting capabilities between consumers and operators.In the process of systemizing the notification obligation,it is necessary to formulate general terms of the operator’s notification obligation,which not only has a clear basis for the operator to assume the notification obligation,but also provides a basis for court’s interpretation of the notification obligation when the content of the notification obligation develops.In addition,China has established consumers’ right of withdrawal in online transaction contracts,so it is necessary to clarify the operator’s obligation to notify the right of cancellation in this type of contract.In practice,there are a variety of ways for operators to fulfill their notification obligations,including: oral notification,physical sample notification,SMS email notification,and contract notification.The law should make clear that written notification methods that are easy for consumers to understand should be used in some specific situations.At the same time,it should be clear that legal documents and industry practices cannot be used as an alternative way for operators to perform their notification obligations.The operator’s obligation to inform is an important part of consumer contract law.Consumer contract law and civil general law are essentially the relationship between special law and general law.When the consumer contract law does not clearly stipulate the legal liability of the operator for breach of the notification obligation,the application of the relevant provisions of the general civil law is a feasible route.According to the interpretation of Article 39 of the Contract Law,if the operator violates the notification obligation and fails to inform the consumer of the restrictive clauses in the standard terms and obtain consume r’s consent,the restrictive clauses cannot be entered into the contract.At the same time,the description of the quality of the goods or services made by the operator through commercial advertisements should be considered as an offer and incorporated into the contract,so as to effectively regulate the advertising and performance of the operator.The operator violates the notification obligation in the contracting process and will bear the liability for negligence in the contract.In order to protect consumers,the constituent elements of the liability for negligence in the contract should be mitigated.If the operator fails to fulfill the obligation of notifying the existence of defects in the goods,consumers can either claim liability for negligence in contracting,or claim liability for breach of contract because.Consumers should be given the right to choose in situations where the operator is liable for both negligence and breach of contract.Consumers can also demand punitive damages when an operator commits fraud.This liability is not incompatible with contracting fault liability and breach of contract liability,that is,regardless of whether consumers claim breach of contract liability or contracting fault liability,they can claim punitive damages at the same time.Regarding the determination of the constituent elements of punitive damages,in order to achieve the purpose of the punitive damages system and maintain the integrity of the current legal system,it is appropriate to adopt the traditional four requirements for the determination of fraud in punitive damages.In order to use punitive damages cautiously,the definition of fraud should be supplemented with substantive judgment standards in addition to the above four elements.