基于公平原则的消费合同法律规制

发布时间：2019-07-03 12:05

【摘要】：消费合同是随着现代社会经济的不断发展而衍生出来普遍适用于日常消费的民事交易形式，因此消费合同规制不但受我国《民法通则》的一般规制，而且还要受到《合同法》及《消费者权益保护法》等特别法律的特殊规制。消费合同因其具有普遍的适用性、签订双方地位的不平衡性、订立形式的新型化及合同条款的固定化趋向等方面特性，因经营者与消费者之间的现实关系而导致双方签订的合同更容易偏离公平的轨道，损害消费者合法权益，因此，法律对消费合同进行规制的重点就应该是构建一套有针对性的消费合同公平保障机制。现实生活中，经营者利用不公平的消费合同，对消费者的权益造成损害的现象比较普遍。在消费合同特别规制问题上，国际上形成了一套较为成熟的规制模式。这一模式有三个要点：第一是立法的专门化，一些主要国家和地区制定了专门规制消费合同的法律；第二，针对现代化的消费交易形式，在德国及我国台湾地区确立了反悔权制度，这一制度突破了传统的合同解除模式，能够有效保护新型交易过程中的消费者利益。第三是确立了以行政规制为主司法救济为辅的的方式，如英国设有公平交易局，，是专门处理此问题的机关；在司法救济途径方面，国外有专门的公益诉讼制度确保消费者利益的实现。而我国缺乏专门的立法，行政规制体制极不健全，司法规制极其有限，也未确立相关的反悔权制度，这对于保护消费者的权益来说是非常不利的，更深层次的便是不利于维护社会的公平公正大方向，也无法彰显现代合同法的正义。基于此，笔者认为我国应以公平原则为基础，借鉴国际法经验，结合现实状况，在立法专门化、引进相关先进制度及综合规制方面加大力度，确保消费者权益的实现。
[Abstract]:Consumption contract is a form of civil transaction which is generally applicable to daily consumption with the continuous development of modern social economy. Therefore, the regulation of consumption contract is not only regulated by the General principles of Civil Law, but also by special laws such as contract Law and Consumer Rights and interests Protection Law. Because of its universal applicability, the imbalance of the status of the two parties, the new form of conclusion and the immobilization trend of the terms of the contract, the contract signed by the two parties is more likely to deviate from the fair track and damage the legitimate rights and interests of consumers because of the realistic relationship between the operator and the consumer. The key point of the law to regulate the consumption contract should be to construct a set of targeted fair guarantee mechanism of the consumption contract. In real life, it is common for operators to damage the rights and interests of consumers by using unfair consumption contracts. On the issue of special regulation of consumption contract, a set of mature regulation mode has been formed in the world. This model has three main points: first, the specialization of legislation, some major countries and regions have formulated laws specifically regulating consumption contracts; second, in view of the modern forms of consumption transactions, the system of anti-repentance rights has been established in Germany and Taiwan, which breaks through the traditional contract termination mode and can effectively protect the interests of consumers in the process of new transactions. The third is to establish a way supplemented by administrative regulation as the main judicial relief, such as the establishment of the Fair Trading Bureau in the United Kingdom, which is the organ specializing in dealing with this problem; in terms of judicial remedies, there is a special public interest litigation system in foreign countries to ensure the realization of consumer interests. However, our country lacks special legislation, the administrative regulation system is extremely imperfect, the judicial regulation is extremely limited, and the relevant repentance right system has not been established, which is very disadvantageous to protect the rights and interests of consumers, and the deeper level is that it is not conducive to maintaining the general direction of fairness and justice of society, nor can it show the justice of modern contract law. Based on this, the author believes that our country should take the principle of fairness as the basis, draw lessons from the experience of international law, combine with the realistic situation, strengthen the efforts in the aspect of legislation specialization, the introduction of relevant advanced system and comprehensive regulation, so as to ensure the realization of consumers' rights and interests.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923.6;D923.8

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