预付卡消费法律制度研究

发布时间：2018-05-15 08:14

本文选题：预付卡消费 + 消费者权益　；参考：《安徽大学》2017年硕士论文

【摘要】：预付卡消费是现代社会生活中很流行的一种消费方式。预付卡消费是消费者先支付消费资金并领取预付卡作为权利凭证并获得一定优惠的消费模式。这种消费模式对于消费者而言可以省去携带现金找零的不便并且可以避免使用银行卡支付时的安全隐患,更重要的是可以享受经营者给予的优惠。对于经营者而言,预付卡消费的好处是可以不用支付利息的回笼一部分资金并且可以长期稳定住一部分客户。这种看似双赢的消费的模式,由于预付卡消费的预付性、风险单向性、格式性等特征,很容易引发经营者侵害预付卡消费者合法权益的事件。现在,预付卡消费已经成为人们生活中的一部分,经营者倾向于这种消费模式,越来越多的行业选择发行预付卡。然而预付卡消费者由于其消费资金已经提前预交给经营者,其常常处于比普通消费者更加弱势的地位,因此,如何更好的完善预付卡消费法律制度,从小的方面来说预付卡消费会涉及到消费者的个人利益,从大的方面来说会涉及到我国市场经济的发展。伴随着预付卡消费模式的快速发展,预付卡消费的过程中出现很多侵害消费者合法权益的现象。其一是经营者的欺诈和虚假宣传,经营者为了让消费者办理预付卡,常常对自己的商品或服务进行虚假宣传,甚至假借发行预付卡的名义对消费者的预付资金进行欺诈。其二是经营者的单方行为导致合同无法履行,主要是经营者擅自转让店铺,接手者不承认原店面的发卡效力,还有经营者擅自更改经营范围、擅自决定是否营业、擅自降低商品和服务质量等。这些经营者的单方行为导致预付卡消费合同无法继续履行,侵害预付卡消费者合法权益。其三是经营者的承诺难以保证,经营者的诚信是预付卡消费的基础,而我国现在还没有建立完善的征信制度,容易出现消费者办理预付卡前后经营者服务态度判若两人等现象。其四是合同的部分条款侵害消费者合法权益,在生活中,消费者与经营者通常不会签订正式的书面合同,而经营者给予消费者的预付卡上记载的格式条款就成为经营者侵害消费者合法权益的武器。预付卡上一般记载"本店有最终解释权"、"本卡丢失概不补办"等侵害消费者权益的条款。出现这些问题的原因总结起来大概有三个,第一是我国关于预付卡消费的法律制度不完善,现行的法律条文中直接针对预付卡消费进行规定只有《消费者权益保护法》第53条,其他法律规定都过于原则,没有结合预付卡消费的特征,在法律适用上具有一定的局限性。第二是监管缺乏有效性,主要表现在监管主体不明确、监管力度不够。第三是消费者维权机制不合理,现在消费者的维权途径与普通的民事主体并无差别,举证难、时间长是很多消费者放弃维权的主要原因。针对预付卡消费中出现的问题,可以从以下几个方面进行完善。其一是完善预付卡消费的立法,包括确定预付卡消费合同的法律地位、明确规定预付卡上必须记载和不得记载的内容、明确预付卡发卡方的告知义务、"举证责任倒置"原则的设立、完善小额诉讼制度和公益诉讼制度等。其二是健全预付卡消费监管体系,包括明确预付卡的发行程序、明确监管主体、加大处罚力度,增加违法成本、建立第三方账户监管预付卡资金、对经营者优惠力度加以规范等。其三是建立健全预付卡消费社会防范体系,利用互联网+建立预付卡消费保险、健全社会信用体系等。
[Abstract]:Prepaid card consumption is a popular mode of consumption in modern social life. Prepaid card consumption is a consumer mode of paying the money first and receiving a prepaid card as a right voucher and obtaining a certain preferential consumption pattern. This consumption pattern can save the consumer from the inconvenience of carrying cash change and avoid the use of banks. The hidden danger of the card payment, more important is to enjoy the privileges given by the operator. For the operator, the advantage of the prepaid card consumption is to return some of the funds without paying the interest and stabilize a part of the customer for a long time. This seemingly win-win mode of consumption, due to the prepayment of the prepaid card consumption, is the risk of prepayment. Unidirectional, formatted, and so on, it is easy to cause the operator to infringe the legitimate rights and interests of the prepaid card consumers. Now, the prepaid card consumption has become a part of the people's life. The operators tend to use this mode of consumption, and more and more industries choose to issue prepaid cards. However, the prepaid card consumers have already made advance for their consumption funds. Prepaid to the operator, it is often in a more disadvantaged position than the ordinary consumer. Therefore, how to better improve the prepaid card consumption legal system, from a small aspect, the prepaid card consumption will involve the individual interests of the consumer. In a large way, it will involve the development of the market economy in China. In the process of rapid development, there are many phenomena that infringe the legitimate rights and interests of consumers in the process of prepaid card consumption. One is the fraud and false propaganda of the operators. In order to allow consumers to deal with the prepaid cards, the operators often make false propaganda on their own goods or services, and even bully the consumer's prepaid funds in the name of the issuing prepaid card. Second, the unilateral act of the operator leads to the failure of the contract to be performed, mainly by the operator transferring the shop without authorization. The operator does not recognize the service of the original store, and the operators have made unauthorized changes in the scope of business, unauthorized decision to do business, and reduce the quality of the goods and services without authorization. The unilateral acts of these operators lead to the consumption of prepaid cards. It is impossible to continue to perform and infringe on the legitimate rights and interests of the prepaid card consumers. Thirdly, the undertakings' commitment is difficult to guarantee, and the integrity of the operators is the basis of the prepaid card consumption. However, our country has not established a perfect credit card system, and it is easy for consumers to judge the service attitude of the operators before and after the prepaid card. The fourth is the contract. Part of the provisions infringe on the legitimate rights and interests of consumers, in life, consumers and operators usually do not sign a formal written contract, and the format clause recorded on the prepaid card by the operator is a weapon for the operator to infringe on the legitimate rights and interests of the consumer. There are three reasons for these problems. The first is that the legal system on the consumption of prepaid cards is not perfect in our country. The provisions of the current legal provisions on the consumption of prepaid cards are only "consumer rights protection law > fifty-third", and the other laws are too original. No combination of the characteristics of prepaid card consumption, there are certain limitations in the application of the law. Second is the lack of effectiveness of supervision, mainly in the lack of supervision and supervision. Third is the irrational mechanism of the consumer rights protection, now the way to maintain rights of consumers is not different from that of ordinary civil subjects, and it is difficult to raise evidence and have long time. It is the main reason that many consumers give up their rights. In view of the problems in the prepaid card consumption, we can improve them from the following aspects. One is to improve the legislation of the prepaid card consumption, including the legal status of the prepaid card consumption contract, clearly stipulates the contents of the prepaid card and the contents that must be recorded and not recorded, and the prepaid card issuer is clearly defined. The informing obligation of Fang, the establishment of the principle of "inversion of burden of proof", the improvement of the small litigation system and the public interest litigation system. The second is to improve the prepaid card consumption supervision system, including the clear issuing procedure of the prepaid card, the clear supervision body, the strengthening of the punishment, the increase of the illegal capital, the establishment of the third party account supervision prepaid card funds, and the excellent operators. Efforts to regulate Hui. Third is to establish and perfect the social security system of prepaid card consumption, the establishment of prepaid card consumption insurance by Internet plus, a sound social credit system.

【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.8

【参考文献】