| In the Law of the People’s Republic of China on Protection of Consumer Rights and Interests,Article 25 prescribes that when consumers go shopping through the network and other remote methods,they have the right to return goods without any reason within seven days since they have received the goods,that is,Consumer’s Right of Withdrawal.Interim Measures on Returning Goods with No Reason in 7 Days by Online Purchase refines in details on the scope of goods which are not applicable to return,the overall judgment standard of products in good condition,the concrete judgment standard of broken products,how to deal with the points and discount coupons,and other issues.Even the above provisions outline the basic outlook of the consumer’s rights of withdrawal in China,however,the important document closely related to the application of the law are not cleared and defined,meanwhile,the consumer’s right of withdrawal is dangerous for becoming formalistic.In the online shopping practice,the major e-commerce companies have interpreted on the consumer withdrawal in accordance with the existing laws and regulations,through the way of the elements and effects of the right from their own benefit.The threshold of exercising the right is greatly improved,which is not conducive to protect the legitimate rights and interests of consumers among the endless stream of network marketing.Thus,it is very urgent and necessary to elaborate the Consumer’s Right of Withdrawal’s elements and consequences according to the combination between legal theory and online shopping practice.Foreign countries have stipulated the consumer withdrawal system earlier,so that the research results of relevant basic theory are very rich.The cooling-off rules of the consumer withdrawal system appeared in Britain and the United States as early as the sixties and seventies in last century,to constrain the trades of credit contracts,installment contracts and advertising issues.In the German’s debt innovation in 2001,consumer withdrawal right was absorbed into the Civil Code,with the wider application scope expanding from the remote trade and e-commerce to consumer credit and go-home sales and other means.The EU has paid particular attention to the protection of consumer rights,not only stipulate the object of the right to withdraw,the specific exercise of the right to withdraw,and the notification obligation on the withdrawal in the Draft of the European Civil Code in details,but also point out clearly in the different types of contracts how to calculate the starting and ending point of the consumer withdrawal if the trader did not inform consumer according to the obligations,and other issues in the Consumer Rights Directive.The first part of this paper presents a question of the elements and effects of the right of withdrawal.This section first defines the relevant body of the right of withdrawal.The concept of consumer is defined as the natural person who needs to buy and use products,or receive services for living consumption.The trader is about the general concept of the meaning as one trader in the daily life,that is the person engaged in commodity production,operation or provision of services as the main business,can be regarded as the natural person,legal person and other organization.Subsequently,this part leads to the necessity of explaining the elements and effects of consumer withdrawal by some cases.The second part explains the constituent the elements of the right of withdrawal.In the form of transactions,the sales methods which apply for the right of withdrawal not only includes the network,television,telephone,mail order,also covers the home-sale.When we make it clear on which goods can be said in good condition,we should take the reasonable behavior after the purchase of goods into account,and should not be critical of the goods without the traces after using or maintaining the original state as the sell.In the case of the interpretation of the scope of the products which are not allowed to return back,it shall distinguish between the goods which are not applicable to the consumer’s right of withdrawal in law and the goods which are not applicable to the consumer’s right of withdrawal in convention.In the interpretation of the goods which are not applicable to the consumer’s right of withdrawal in convention,we should grasp two major elements:one is the substantive element,that is,whether the goods themselves are belong to the goods in the special nature as the law states;the other one is the formal element,that is,whether the trader provide a special reminder that the goods does not apply for returning without any reason within seven days to consumer in the sales contracts,which get the acknowledgement from the consumer.The third part explains related issues about the right of withdrawal in the process of exercise.Consumers can use this right by oral form,written form and the form of returning the goods directly.And,choosing the form of returning the goods directly,consumers shall not be liable to notify the trader in advance.In the period of disposing time,"receive goods" should be beneficial to consumers,who are informed that counting can be stopped if obligation fails to be performed.When talk about expense burden,most of the consumers can burden freight more than twice in practice.The fourth part analyzes the effect of the right of withdrawal.Before consumer exercises the right of withdrawal,the contract has been exercised.After consumer exercises of the right of withdrawal,the contract is revoked.The trader can retrieve the goods in accordance with the ownership of the goods.And the consumer can require the trader to return the price and interest on improper benefits. |
