分时度假中的消费者权利保护研究
发布时间：2018-12-14 12:07
【摘要】：分时度假是一种在国外发展迅速但在国内却屡陷困境的新型交易安排,其涉及主体较多,存续期限较长,蕴含风险较大。由于我国分时度假市场并不发达,对其的研究也多集中在域外法的介绍和引进方面,从解释论角度实证地对其展开的分析并不多见,这对于法律的适用而言是一种缺陷。本文在简单介绍分时度假的起源和发展之后,对作为本文研究对象的分时度假进行了界定。为更具现实性,本文的研究建立在对实践中大量案例整理的基础上。通过对分时度假中消费者权利主要内容的提取和性质的分析,对实践中出现的主要问题作出了有针对性的探讨,并指出了目前我国法律制度在分时度假方面存在的不足,在此基础上,文章最后对其更好的发展提出了立法论上的建议。在此框架之下,文章共分为五个部分。第一部分在梳理分时度假发展历程之后,对国内外关于分时度假的界定进行了考察,重点分析了欧盟、英国、德国和美国的立法例,在此基础上对分时度假作出了较为宽广的界定。为便于深入展开研究,并对本文的研究对象进行了限定。第二部分在对实践中的案例进行整理的基础上,对分时度假交易安排下消费者权利的主要内容进行了提取,在此基础上对分时度假中消费者所取得权利的性质作出了不同于前人的分析,坚定的认为该权利属性为债权而非物权。第三部分通过对案例的整理,总结出分时度假中与消费者权利有关的纠纷的主要类型,主要包括与权利取得有关的纠纷、与权利内容有关的纠纷、与权利行使有关的纠纷以及与权利消灭有关的纠纷。针对这些纠纷类型,文章分别进行了两个层面的分析,其一是对现有司法解决方案的总结,其二是作者本人的观点。由于消费者撤回权在分时度假中有极为重要的作用,而我国关于消费者撤回权的规定却无法在此予以适用,文章对此进行了分析。由于在目前的法律制度框架内对分时度假纠纷的解决显得极为不效率,本文第四部分针对此缺陷,有针对性的提出了相应的立法建议,主要包括信息披露制度的构建、消费者撤回权制度的完善、合同内容规制的加强以及相关配套制度的建设。期望能够通过此种立法改进促使分时度假更健康的发展。文章最后一部分对全文的内容进行了总结,认为我们应当在法律的稳定性和不断发展之间找到平衡点,通过审慎而理性的分析和构建,促进制度的完善和分时度假的发展。
[Abstract]:Timeshare is a new type of transaction arrangement which develops rapidly in foreign countries but often falls into difficulties in our country. It involves more subjects, has a longer life span and contains a great deal of risks. As the market of timeshare is not developed in China, the research on it is mainly focused on the introduction and introduction of extraterritorial laws. The empirical analysis of timeshare is rare from the angle of explanation, which is a defect to the application of law. After a brief introduction of the origin and development of timeshare, this paper defines timeshare as the object of this paper. In order to be more realistic, this study is based on the consolidation of a large number of cases in practice. Based on the analysis of the main content and nature of consumer rights in time-sharing holidays, this paper makes a targeted discussion on the main problems in practice, and points out the deficiencies in the current legal system of time-sharing holidays in China. On this basis, the article finally put forward some legislative suggestions for its better development. Under this framework, the article is divided into five parts. The first part reviews the definition of timeshare at home and abroad after combing the development of timeshare, focusing on the European Union, the United Kingdom, Germany and the United States legislation. On this basis, a broad definition of timeshare is made. In order to carry out the research in depth, the research object of this paper is limited. In the second part, on the basis of sorting out the cases in practice, the main contents of the consumer rights under the arrangement of timeshare transaction are extracted. On this basis, the author makes a different analysis of the nature of the rights acquired by consumers in time-sharing holidays, and firmly believes that the property of this right is a creditor's right rather than a real right. The third part summarizes the main types of disputes related to the rights of consumers in time-sharing holidays, including the disputes related to the acquisition of rights and the content of rights. Disputes related to the exercise of rights and disputes related to the elimination of rights. In view of these dispute types, the article carries on two levels analysis separately, one is the summary to the existing judicial solution, the other is the author's own viewpoint. Since consumers' right to withdraw plays an extremely important role in timesharing, the provisions on consumers' right of withdrawal in our country cannot be applied in this paper. Because it is very inefficient to resolve the time-sharing dispute in the framework of the current legal system, the fourth part of this paper puts forward the corresponding legislative suggestions, including the construction of the information disclosure system. The consummation of the system of consumers' right of withdrawal, the strengthening of the regulation of contract content and the construction of relevant supporting system. It is hoped that such legislative improvements will lead to a healthier development of timeshare. In the last part of the article, the author concludes that we should find a balance between the stability of the law and the continuous development of the law, and promote the perfection of the system and the development of timesharing through careful and rational analysis and construction.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.8
本文编号：2378586
[Abstract]:Timeshare is a new type of transaction arrangement which develops rapidly in foreign countries but often falls into difficulties in our country. It involves more subjects, has a longer life span and contains a great deal of risks. As the market of timeshare is not developed in China, the research on it is mainly focused on the introduction and introduction of extraterritorial laws. The empirical analysis of timeshare is rare from the angle of explanation, which is a defect to the application of law. After a brief introduction of the origin and development of timeshare, this paper defines timeshare as the object of this paper. In order to be more realistic, this study is based on the consolidation of a large number of cases in practice. Based on the analysis of the main content and nature of consumer rights in time-sharing holidays, this paper makes a targeted discussion on the main problems in practice, and points out the deficiencies in the current legal system of time-sharing holidays in China. On this basis, the article finally put forward some legislative suggestions for its better development. Under this framework, the article is divided into five parts. The first part reviews the definition of timeshare at home and abroad after combing the development of timeshare, focusing on the European Union, the United Kingdom, Germany and the United States legislation. On this basis, a broad definition of timeshare is made. In order to carry out the research in depth, the research object of this paper is limited. In the second part, on the basis of sorting out the cases in practice, the main contents of the consumer rights under the arrangement of timeshare transaction are extracted. On this basis, the author makes a different analysis of the nature of the rights acquired by consumers in time-sharing holidays, and firmly believes that the property of this right is a creditor's right rather than a real right. The third part summarizes the main types of disputes related to the rights of consumers in time-sharing holidays, including the disputes related to the acquisition of rights and the content of rights. Disputes related to the exercise of rights and disputes related to the elimination of rights. In view of these dispute types, the article carries on two levels analysis separately, one is the summary to the existing judicial solution, the other is the author's own viewpoint. Since consumers' right to withdraw plays an extremely important role in timesharing, the provisions on consumers' right of withdrawal in our country cannot be applied in this paper. Because it is very inefficient to resolve the time-sharing dispute in the framework of the current legal system, the fourth part of this paper puts forward the corresponding legislative suggestions, including the construction of the information disclosure system. The consummation of the system of consumers' right of withdrawal, the strengthening of the regulation of contract content and the construction of relevant supporting system. It is hoped that such legislative improvements will lead to a healthier development of timeshare. In the last part of the article, the author concludes that we should find a balance between the stability of the law and the continuous development of the law, and promote the perfection of the system and the development of timesharing through careful and rational analysis and construction.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.8
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