特许经营冷静期制度的法律思考
发布时间：2018-10-12 15:20
【摘要】：特许经营作为现代商业、企业的一种新型商业经营模式和组织形式,既是市场经济发展的必然产物,又是商业领域的一场深刻革命,自1859年在美国纽约诞生以来,已在全球范围内广为滋生蔓延。特许经营中特许人与受许人本应是地位平等、互相独立的市场主体,二者关系也应是平等主体之间的民商事关系。但是,特许人对特许经营组织的“持续控制”,以及特许经营合同缔约过程中存在的受许人投入专用性资产和特许人机会主义行为,使得特许人与受许人存在事实上的不平等和利益上的不平衡,受许人处于弱势地位,权利易于受到损害。而要实现公平正义的法律价值,立法者必然要启动利益平衡的调节机制,通过法律手段使双方利益关系向受许人倾斜,从而实现特许人与受许人之间的利益平衡。于是我国2007年施行的《商业特许经营管理条例》就新增加了很多保护受许人的条款,其中第十二条关于冷静期制度的规定引起了广大学者和从业人员的注意。虽然它在特许经营体系中是第一次引入,但是它对于消费者、直销商而言并不陌生。冷静期制度首先被应用于直销法中,在国外也被消费者和经营者所熟知。尽管它由来已久,并且在西方国家已经发展到相对完善的地步,但是纵观国内外学者,鲜有将该制度真正进行梳理的书籍文献,所能找到的参考资料也都仅仅局限于法条规定和少部分的引用介绍。因此本文就该制度进行梳理介绍,借鉴国外成功经验,从立法角度来完善我国的冷静期制度,从而实质上保护受许人的合法利益。本文除绪论和结语外,正文部分主要分为四部分。第一部分对特许经营体系中冷静期制度的理论进行分析,从而引出冷静期制度在特许经营体系中存在的必要性。第二部分是对我国冷静制度的实行现状进行分析,援引案例发现我国存在的问题有:条文内容的模糊、处理后果的缺失、执行部门的欠缺等方面。第三部分是对国外冷静期制度的介绍,并对各国相关方面的立法长处进行归纳总结以供我国借鉴。从而引出第四部分的几方面的立法完善:明确法律条文的内容、增加处理后果的规定、协调权利保障的部门。
[Abstract]:Franchising, as a new business mode and organizational form of modern commerce, is not only the inevitable outcome of the development of market economy, but also a profound revolution in the field of commerce. Since its birth in 1859 in New York, It has spread around the world. Franchisor and franchisee should be equal and independent market subjects in franchise operation, and the relationship between them should also be the civil and commercial relationship between equal subjects. However, the franchisor's "continuous control" over the franchise organization, as well as the franchisee's investment of special assets and franchisor's opportunistic behavior in the process of concluding the franchise contract, It makes the franchisor and the franchisee exist the actual inequality and the imbalance of interests, the franchisee is in a weak position, and the rights are vulnerable to damage. In order to realize the legal value of fairness and justice, the legislator must start the adjustment mechanism of the balance of interests, and make the relationship between the interests of both sides tilt to the franchisee through legal means, so as to realize the balance of interests between the franchisor and the franchisee. As a result, the regulations on Commercial franchise Management in 2007 have added a lot of provisions to protect the franchisees, among which the provisions of Article 12 on the cooling-off period system have attracted the attention of scholars and practitioners. Although it is introduced for the first time in franchise system, it is no stranger to consumers and distributors. The cooling-off period system is first applied in the direct selling method, and is also well known by consumers and operators abroad. Although it has a long history, and has developed to a relatively perfect situation in western countries, but throughout the domestic and foreign scholars, there are few books and documents that really comb the system. The references available are also limited to the provisions of the law and a small number of citations. So this paper introduces the system, draws lessons from the successful experience of foreign countries, consummates our country's cooling-off period system from the legislative angle, so as to protect the legitimate interests of the franchisee in essence. In addition to the introduction and conclusion, the text is divided into four parts. The first part analyzes the theory of the cooling-off period in the franchise system, which leads to the necessity of the cooling-off system in the franchise system. The second part is to analyze the current situation of the implementation of the calm system in China, citing the case found that there are some problems in our country: the ambiguity of the content of the articles, the lack of the consequences, the lack of executive departments, and so on. The third part is the introduction of the foreign cooling-off period system, and the relevant aspects of the legislative strengths are summarized for our reference. It leads to the legislative perfection of the fourth part: clarifying the content of the legal provisions, increasing the provisions to deal with the consequences, and coordinating the departments of the protection of rights.
【学位授予单位】：上海师范大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.29
[Abstract]:Franchising, as a new business mode and organizational form of modern commerce, is not only the inevitable outcome of the development of market economy, but also a profound revolution in the field of commerce. Since its birth in 1859 in New York, It has spread around the world. Franchisor and franchisee should be equal and independent market subjects in franchise operation, and the relationship between them should also be the civil and commercial relationship between equal subjects. However, the franchisor's "continuous control" over the franchise organization, as well as the franchisee's investment of special assets and franchisor's opportunistic behavior in the process of concluding the franchise contract, It makes the franchisor and the franchisee exist the actual inequality and the imbalance of interests, the franchisee is in a weak position, and the rights are vulnerable to damage. In order to realize the legal value of fairness and justice, the legislator must start the adjustment mechanism of the balance of interests, and make the relationship between the interests of both sides tilt to the franchisee through legal means, so as to realize the balance of interests between the franchisor and the franchisee. As a result, the regulations on Commercial franchise Management in 2007 have added a lot of provisions to protect the franchisees, among which the provisions of Article 12 on the cooling-off period system have attracted the attention of scholars and practitioners. Although it is introduced for the first time in franchise system, it is no stranger to consumers and distributors. The cooling-off period system is first applied in the direct selling method, and is also well known by consumers and operators abroad. Although it has a long history, and has developed to a relatively perfect situation in western countries, but throughout the domestic and foreign scholars, there are few books and documents that really comb the system. The references available are also limited to the provisions of the law and a small number of citations. So this paper introduces the system, draws lessons from the successful experience of foreign countries, consummates our country's cooling-off period system from the legislative angle, so as to protect the legitimate interests of the franchisee in essence. In addition to the introduction and conclusion, the text is divided into four parts. The first part analyzes the theory of the cooling-off period in the franchise system, which leads to the necessity of the cooling-off system in the franchise system. The second part is to analyze the current situation of the implementation of the calm system in China, citing the case found that there are some problems in our country: the ambiguity of the content of the articles, the lack of the consequences, the lack of executive departments, and so on. The third part is the introduction of the foreign cooling-off period system, and the relevant aspects of the legislative strengths are summarized for our reference. It leads to the legislative perfection of the fourth part: clarifying the content of the legal provisions, increasing the provisions to deal with the consequences, and coordinating the departments of the protection of rights.
【学位授予单位】：上海师范大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.29
【参考文献】
相关期刊论文 前10条
1 温世扬,周s，
本文编号：2266627
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