京城首例开瓶费案引发的法律问题思考
发布时间：2018-07-28 19:18
【摘要】： 在现代市场经济条件下,消费者有自主选择何种商品和服务的自由,经营者有在法律法规限度内自主安排经营方式和服务内容的自由,当二者利益发生冲突时法律必将在其间作出一定的考量和取舍,但由于我国当前的法律对此并未作出明确规定,类似案件的判决有时又完全相反,因此,在当前法制环境下,对于“谢绝自带酒水”和收取“开瓶费”合法、合理与否给予一个清晰的定位就显得很有必要。本文以京城首例开瓶费案为分析视角,通过对该案态度迥异的一、二审判决的详细介绍与评析,对本案所折射出来的诸如开瓶费规定的合法性与合理性、政府干预与行业规制的作用与限度、民意对司法活动的影响以及司法者应秉持的态度等问题进行较深入的探讨与分析。 全篇共分为四章： 第一章对北京首例开瓶费的案情、案件的主要争议事实、以及一、二审判决的结果及主要依据作全面介绍。 第二章对一、二审判决的判决理由、法律适用、各方对法院判决的争议以及两审法院对开瓶费问题态度的微妙转化、应对民意技巧等方面作全面评析,同时进一步分析一、二审判决在法律适用及司法导向功能上的优劣。 第三章从我国当前相关部门法的角度就本案中“谢绝自带酒水”、“开瓶费”等酒店单方做法的合法性、合理性展开论证并探讨可能出现的例外情形。 第四章就开瓶费案引发的相关问题,从政府干预和行业规制的作用与必要限度、民众意识、司法者的态度等多角度讨论类似纠纷的解决机制以及其对我国法治建设的若干启示。
[Abstract]:Under the conditions of modern market economy, consumers have the freedom to choose what goods and services they want, and operators have the freedom to arrange their own business methods and service contents within the limits of laws and regulations. When the interests of the two conflicts occur, the law will certainly make certain considerations and trade-offs. However, because the current law of our country does not make a clear provision on this, and the judgments of similar cases are sometimes completely opposite, therefore, in the current legal environment, It is necessary to refuse to bring your own wine and charge the fee for opening the bottle. Whether it is reasonable or not, it is very necessary. From the perspective of Beijing's first case of bottle opening fee, through the detailed introduction and evaluation of the judgment of the second instance, which has different attitudes in this case, this paper reflects the legality and reasonableness of the legal provisions such as the fee for opening the bottle, which is reflected in this case. The role and limitation of government intervention and industry regulation, the influence of public opinion on judicial activities and the attitude of judicial personnel should be discussed and analyzed deeply. The whole chapter is divided into four chapters: the first chapter gives a comprehensive introduction to the case of Beijing's first bottle opening fee, the main controversial facts of the case, and the results and main basis of the first and second instance judgment. The second chapter makes a comprehensive assessment of the reasons for the judgment of the first and second instance judgments, the application of the law, the disputes between the parties to the court's decisions, the subtle transformation of the court's attitude towards the issue of bottle opening fees, and the skills of public opinion, etc. At the same time, it further analyzes one. The merits and demerits of the second instance judgment in the application of law and the function of judicial guidance. The third chapter discusses the legitimacy and rationality of the unilateral practice of "refusing to bring wine" and "bottle opening fee" in this case from the angle of the current relevant department law of our country and discusses the possible exceptions. The fourth chapter discusses the solving mechanism of similar disputes and its enlightenment to the construction of the rule of law in our country from the functions and necessary limits of government intervention and industry regulation, the public consciousness, the attitude of the judiciary and so on.
【学位授予单位】：兰州大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D920.5
[Abstract]:Under the conditions of modern market economy, consumers have the freedom to choose what goods and services they want, and operators have the freedom to arrange their own business methods and service contents within the limits of laws and regulations. When the interests of the two conflicts occur, the law will certainly make certain considerations and trade-offs. However, because the current law of our country does not make a clear provision on this, and the judgments of similar cases are sometimes completely opposite, therefore, in the current legal environment, It is necessary to refuse to bring your own wine and charge the fee for opening the bottle. Whether it is reasonable or not, it is very necessary. From the perspective of Beijing's first case of bottle opening fee, through the detailed introduction and evaluation of the judgment of the second instance, which has different attitudes in this case, this paper reflects the legality and reasonableness of the legal provisions such as the fee for opening the bottle, which is reflected in this case. The role and limitation of government intervention and industry regulation, the influence of public opinion on judicial activities and the attitude of judicial personnel should be discussed and analyzed deeply. The whole chapter is divided into four chapters: the first chapter gives a comprehensive introduction to the case of Beijing's first bottle opening fee, the main controversial facts of the case, and the results and main basis of the first and second instance judgment. The second chapter makes a comprehensive assessment of the reasons for the judgment of the first and second instance judgments, the application of the law, the disputes between the parties to the court's decisions, the subtle transformation of the court's attitude towards the issue of bottle opening fees, and the skills of public opinion, etc. At the same time, it further analyzes one. The merits and demerits of the second instance judgment in the application of law and the function of judicial guidance. The third chapter discusses the legitimacy and rationality of the unilateral practice of "refusing to bring wine" and "bottle opening fee" in this case from the angle of the current relevant department law of our country and discusses the possible exceptions. The fourth chapter discusses the solving mechanism of similar disputes and its enlightenment to the construction of the rule of law in our country from the functions and necessary limits of government intervention and industry regulation, the public consciousness, the attitude of the judiciary and so on.
【学位授予单位】：兰州大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D920.5
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