预付式消费合同法律实务问题研究

发布时间：2018-03-16 19:42

本文选题：预付式消费　切入点：预付式消费合同　出处：《西南石油大学》2017年硕士论文　论文类型：学位论文

【摘要】：预付式消费为人们的消费活动提供了便利,但同时也为交易安全带来了新的不安。在我国实务中,因规制预付式消费合同的有针对性的相关规定阙如,导致预付式消费中纠纷频发,消费者权益往往受到侵犯。在调处纠纷时,消费者因为"预付"在先,地位被动而不利,故而不得不让步,以和解告终;诉讼中,法官因囿于缺乏具体规定,偏向于调解处理,最终也主要是消费者让步。因此,研究预付式消费合同,理清其法律关系,为保护消费者利益,为平衡预付式消费合同双方的利益是迫切的。其意义在于,从理论上,可以丰富我国合同法;在实践中,可以推动预付式消费在拉动消费中作用的充分发挥,帮助司法实务纠纷的解决。文章共分为五部分。第一部分为绪论,该部分介绍了本论文的选题目的、选题意义以及文献综述、研究方法。第二部分,通过两个案例及相关统计数据反映我国目前普遍存在的预付式消费合同法律实务问题。第三部分,经营者通过规避签订书面合同侵害消费者权益较为普遍,经营者利用格式条款侵害消费者权益极为常见,经营者采用欺诈手段侵犯消费者权益时有发生,经营者"跑路"屡见不鲜四部分呈现预付式消费合同存在的问题,并分析其原因:现行预付式消费合同法律规定不健全、监管不力,普遍缺乏书面合同,消费者法律意识淡薄等。第四部分,对美国、日本及我国台湾地区在预付式消费合同规制方面的先进经验进行考察并发现其启示意义。第五部分,在结合现有处理方式与我国实际的基础上,借鉴域外有效经验,提出如下改善建议:将预付式消费合同规定为有名合同并做特别规定;完善对预付式消费合同的监管;建立预付式消费合同的社会防范体系。
[Abstract]:Prepaid consumption provides convenience for people's consumption activities, but it also brings new uneasiness to transaction security. As a result of frequent disputes in prepaid consumption, consumers' rights and interests are often infringed upon. In the mediation of disputes, consumers are forced to compromise and end up in litigation because they are "prepaid" in the first place and are in a passive and disadvantageous position. Due to the lack of specific regulations, the judge prefers to mediate and deal with the matter, and finally mainly the consumer gives way. Therefore, the author studies the prepaid consumption contract, clarifies its legal relationship, and in order to protect the interests of the consumer, In order to balance the interests of both parties in the prepaid consumption contract, the significance of which is that, theoretically, it can enrich the contract law of our country; in practice, it can promote the prepaid consumption to play a full role in stimulating consumption. The article is divided into five parts. The first part is the introduction. This part introduces the purpose, significance, literature review and research methods of this thesis. Through two cases and related statistics, we can see that the legal practice of prepaid consumption contract is common in our country. The third part, the operator infringes the consumer's rights and interests by avoiding signing a written contract. It is very common for the operator to infringe on the consumer's rights and interests by using the form clause, and the operator infringing on the consumer's rights and interests by fraudulent means occurs from time to time. The four parts of the operator "running the road" often present the problems existing in the prepaid consumption contract. And analyzes its reason: the current prepaid consumption contract law stipulation is not perfect, the supervision is weak, the general lack of the written contract, the consumer legal consciousness is weak and so on. 4th part, to the United States, The advanced experience in the regulation of prepaid consumption contract in Japan and Taiwan is investigated and its enlightening significance is found. Part 5th, on the basis of combining the existing treatment methods with the reality of our country, draws lessons from the overseas effective experience. Some suggestions are put forward as follows: defining prepaid consumption contract as famous contract and making special provision; perfecting supervision of prepaid consumption contract; establishing social guard system of prepaid consumption contract.
【学位授予单位】：西南石油大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.8

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