远程交易撤回权的一个经济学批判
发布时间：2018-08-02 10:24
【摘要】：撤回权作为消费者保护领域重要的规制技术，是一种赋予市场中特定弱势主体即消费者的相对之力，是一种干预私法自治的手段。立法赋予消费者撤回权的本意在于增强消费者实现自己意思的能力，从而矫正消费者与经营者之间的不平等，以实现私法自治下的社会公正。但正如其他干预私法自治的手段一样，撤回权的干预也应当保持一个合适的程度，并且在若干私法自治的基本原则中实现平衡。撤回权的平衡性质决定了经济分析方法在探讨撤回权妥当性方面具有相当的优越性。 我国《消费者权益保护法》所规定的撤回权是远程交易撤回权。远程交易撤回权在实践中的意义主要体现在矫正远程交易中的结构性信息不对称。经济学的研究表明，经营者和消费者之间的信息不对称有可能导致柠檬市场或无效交易，两者都是不可欲的社会效果，撤回权因此被认为是可以实现社会效益。然而事实上远程交易撤回权在防止柠檬市场和无效交易中的作用总体而言被高估了。就防范柠檬市场而言，只有当消费者可以掌握商品质量信息时才有赋予消费者撤回权的必要，然而大多数的产品质量信息对消费者而言是不易掌握的，而且商誉反馈机制对于防范柠檬市场的作用也被低估。就防止无效交易而言，需要试用来知晓的体验信息只存在于个性化的商品之中，而大多数的商品却是标准化的，而且通过各种创新形式的信息披露，，消费者可以比利用撤回权更加有效地获知体验信息。撤回权需要付出很多成本，其中主要的是法律关系不确定的成本、行使撤回权的社会成本以及法律成本。 由于撤回权在防范柠檬市场和无效交易上的作用是值得怀疑的，因此撤回权的社会总体效益不能获得证实。就单笔交易的效益来看，撤回权导致的成本的最终承担者是消费者，而市场的异质性决定了不同的消费者对撤回权态度不同。赋予强制性的撤回权实际上剥夺了消费者选择撤回权的自由，剥夺了经营者选择经营方式的自由，并且阻碍了消费者和经营者之间就撤回权达成有效交易，还会导致交叉补贴。强制性的撤回权限制自由、制造不公并且妨碍效率。与法律不对撤回权作出规定或只规定任意性的撤回权相比，强制性的撤回权是最差的立法模式。
[Abstract]:As an important regulatory technology in the field of consumer protection, the right of withdrawal is a relative force that endows the market with a specific vulnerable subject, that is, the consumer, and is a means of interfering with the autonomy of private law. The original intention of legislation is to strengthen the ability of consumers to realize their own intention, so as to correct the inequality between consumers and operators and to realize social justice under the autonomy of private law. But like other means of intervention in private autonomy, the intervention of the right of withdrawal should be maintained to a suitable degree and balanced among the basic principles of private autonomy. The balanced nature of the right of withdrawal determines that the economic analysis method has considerable advantages in discussing the appropriateness of the right of withdrawal. The right of withdrawal stipulated by the Consumer Rights and interests Protection Law of our country is the right of withdrawal of remote transaction. The significance of the right to withdraw remote transactions in practice is mainly reflected in the correction of structural information asymmetry in remote transactions. Economic studies show that the asymmetric information between operators and consumers may lead to lemon market or invalid transactions, both of which are not desirable social effects, so the right to withdraw is considered to be able to achieve social benefits. In fact, however, the role of remote trading revocation in preventing the lemon market and invalid trading is overvalued overall. As far as preventing the lemon market is concerned, it is necessary to give consumers the right to withdraw when they can grasp the quality information of the goods. However, most of the product quality information is difficult for consumers to grasp. Moreover, the role of goodwill feedback mechanism in preventing the lemon market is also underestimated. In terms of preventing invalid transactions, experience information that needs to be tested to know only exists in personalized goods, most of which are standardized and are disclosed through various innovative forms of information. Consumers can get experience information more effectively than using the right of withdrawal. The right of withdrawal requires a lot of costs, including the cost of uncertainty of legal relationship, the social cost of exercising the right of withdrawal and the cost of law. Since the role of withdrawal right in preventing lemon market and invalid transactions is doubtful, the overall social benefits of the right of withdrawal cannot be proved. From the point of view of the benefit of a single transaction, the ultimate burden of the cost caused by the right of withdrawal is the consumer, and the heterogeneity of the market determines the different attitudes of different consumers towards the right of withdrawal. The mandatory right of withdrawal actually deprives consumers of the freedom to choose the right to withdraw, deprives the operator of the freedom to choose the mode of operation, and hinders the effective transaction between the consumer and the operator on the right of withdrawal, and also leads to cross-subsidization. The compulsory right of withdrawal limits freedom, creates injustice and impairs efficiency. The compulsory right of withdrawal is the worst legislative model compared with the right of withdrawal which does not provide for the right of withdrawal or only provides for the arbitrary right of withdrawal.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.294
本文编号：2159126
[Abstract]:As an important regulatory technology in the field of consumer protection, the right of withdrawal is a relative force that endows the market with a specific vulnerable subject, that is, the consumer, and is a means of interfering with the autonomy of private law. The original intention of legislation is to strengthen the ability of consumers to realize their own intention, so as to correct the inequality between consumers and operators and to realize social justice under the autonomy of private law. But like other means of intervention in private autonomy, the intervention of the right of withdrawal should be maintained to a suitable degree and balanced among the basic principles of private autonomy. The balanced nature of the right of withdrawal determines that the economic analysis method has considerable advantages in discussing the appropriateness of the right of withdrawal. The right of withdrawal stipulated by the Consumer Rights and interests Protection Law of our country is the right of withdrawal of remote transaction. The significance of the right to withdraw remote transactions in practice is mainly reflected in the correction of structural information asymmetry in remote transactions. Economic studies show that the asymmetric information between operators and consumers may lead to lemon market or invalid transactions, both of which are not desirable social effects, so the right to withdraw is considered to be able to achieve social benefits. In fact, however, the role of remote trading revocation in preventing the lemon market and invalid trading is overvalued overall. As far as preventing the lemon market is concerned, it is necessary to give consumers the right to withdraw when they can grasp the quality information of the goods. However, most of the product quality information is difficult for consumers to grasp. Moreover, the role of goodwill feedback mechanism in preventing the lemon market is also underestimated. In terms of preventing invalid transactions, experience information that needs to be tested to know only exists in personalized goods, most of which are standardized and are disclosed through various innovative forms of information. Consumers can get experience information more effectively than using the right of withdrawal. The right of withdrawal requires a lot of costs, including the cost of uncertainty of legal relationship, the social cost of exercising the right of withdrawal and the cost of law. Since the role of withdrawal right in preventing lemon market and invalid transactions is doubtful, the overall social benefits of the right of withdrawal cannot be proved. From the point of view of the benefit of a single transaction, the ultimate burden of the cost caused by the right of withdrawal is the consumer, and the heterogeneity of the market determines the different attitudes of different consumers towards the right of withdrawal. The mandatory right of withdrawal actually deprives consumers of the freedom to choose the right to withdraw, deprives the operator of the freedom to choose the mode of operation, and hinders the effective transaction between the consumer and the operator on the right of withdrawal, and also leads to cross-subsidization. The compulsory right of withdrawal limits freedom, creates injustice and impairs efficiency. The compulsory right of withdrawal is the worst legislative model compared with the right of withdrawal which does not provide for the right of withdrawal or only provides for the arbitrary right of withdrawal.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.294
【参考文献】
相关期刊论文 前1条
1 董文军;;平等视野中的消费者权利解读[J];法制与社会发展;2007年02期
本文编号：2159126
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