我国“消费者”范围界定的区域法律比较
发布时间：2019-05-18 10:11
【摘要】：我国消法在“消费者”范围的界定上存在以下几个问题。在消费者的主体范围上,对消费者仅指自然人,还是单位也包括在内未加以明确;主观目的上,对生活消费的判断缺乏明确的标准;客体范围上,教育、医疗服务可否受消法调整未作规定。我国各省级区域的相关立法当中,在消费者的主体范围问题上,仅有一个省份规定消费者只包括自然人,三分之一左右的省份直接将单位纳入消费者的范围,剩下的省份要么是采取了与消法相似的表述,即未明确消费者的主体范围,要么干脆对消费者概念不作规定。在对“生活消费”判断的问题上,各省份基本都未作规定,只有浙江省的规定中提到了“经营者提供假冒伪劣商品承担加倍赔偿责任的,不得以消费者购买数量过多为由免责”,表明其对司法实践中以购买者购买商品数量判断是不是知假买假持否定态度。在对教育、医疗服务是否受消法调整的问题上,很多省份并未全盘肯定或者否定,而是做进一步区分,进行不同的规定,这种做法能为消法的补充以及完善提供非常有意义的借鉴。综合各省份的相关规定以及理论界的相关观点,对“消费者”范围的界定,我认为,首先,单位应该包括在消费者范围内,将单位视为消费者更契合消法的立法宗旨,可以更好地保护消费者,并且较多省份的立法中认可单位的消费者地位,即使还有部分省份未加以明确、未规定,但是亦说明其并不当然否定单位可以视为消费者;其次,对生活消费的判断问题上,特别是对产生较多争论的知假买假问题,尽管国家工商总局在发布的《消费者权益保护法实施条例(征求意见稿)》中,对知假买假受消法调整持否定态度,但是考虑到知假买假在司法实践中难以判断,知假买假者的主观目的不影响制假售假者的主观恶性,且知假买假客观上能更好地净化市场环境,所以个人认为对此持肯定态度可能更为合理些;最后,教育、医疗服务是否受消法调整的问题,相关省份的规定提供了有益的借鉴,即需要对教育、医疗服务的性质加以区分。对教育服务而言,可以将非公益性、营利性、非学历教育纳入消法的调整范围;对医疗服务而言,可以将营利性医疗机构或者是非营利性医疗机构提供的非基本医疗服务纳入到消法调整范围当中。
[Abstract]:There are the following problems in the definition of the scope of "consumer" in the elimination law of our country. In the scope of the subject of the consumer, it is not clear whether the consumer only refers to the natural person, or whether the unit is also included. On the subjective purpose, there is no clear standard for judging the consumption of life. In the scope of object, whether education and medical service can be adjusted by elimination law is not stipulated. Among the relevant legislation in various provincial regions of our country, on the subject scope of consumers, only one province stipulates that consumers only include natural persons, and about 1/3 provinces directly bring units into the scope of consumers. The rest of the provinces have either adopted a similar expression to the elimination law, that is, the scope of the subject of consumers is not clear, or the concept of consumers is simply not regulated. On the issue of judging "living consumption", the provinces have basically not made any provisions, only the provisions of Zhejiang Province mentioned that "operators should bear double liability for providing fake and shoddy goods." Consumers should not be exempted from liability for buying too much, indicating that they hold a negative attitude towards judging whether the buyer buys goods in judicial practice. On the issue of whether education and medical services are subject to the adjustment of elimination laws, many provinces have not fully affirmed or denied them, but have made further distinctions and made different provisions. This method can provide a very meaningful reference for the supplement and perfection of elimination method. Taking into account the relevant provisions of each province and the relevant views of the theoretical circle, and defining the scope of "consumer", I think, first of all, the unit should be included in the scope of consumers, and the unit should be regarded as a consumer more in line with the legislative purpose of the elimination law. It can better protect consumers, and the legislation of more provinces recognizes the consumer status of units, even if some provinces are not clear and unspecified, but it also means that it does not of course deny that units can be regarded as consumers; Secondly, on the judgment of living consumption, especially on the issue of knowing false and buying fake, although the State Administration for Industry and Commerce issued the regulations on the implementation of Consumer Rights and interests Protection Law (draft for soliciting opinions), It holds a negative attitude towards the adjustment of the law of buying and selling forgeries, but considering that it is difficult to judge in judicial practice, the subjective purpose of those who know that counterfeiters do not affect the subjective malignancy of counterfeiters. And know that fake buying fake objective can better purify the market environment, so I think it may be more reasonable to hold a positive attitude towards this; Finally, whether education and medical services are adjusted by elimination law, the provisions of the relevant provinces provide a useful reference, that is, it is necessary to distinguish between education and the nature of medical services. As far as educational services are concerned, non-public welfare, profit-making and non-academic education can be brought into the adjustment scope of elimination law. As far as medical services are concerned, the non-basic medical services provided by for-profit medical institutions or non-profit medical institutions can be included in the scope of elimination adjustment.
【学位授予单位】：南京师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.8
本文编号：2479908
[Abstract]:There are the following problems in the definition of the scope of "consumer" in the elimination law of our country. In the scope of the subject of the consumer, it is not clear whether the consumer only refers to the natural person, or whether the unit is also included. On the subjective purpose, there is no clear standard for judging the consumption of life. In the scope of object, whether education and medical service can be adjusted by elimination law is not stipulated. Among the relevant legislation in various provincial regions of our country, on the subject scope of consumers, only one province stipulates that consumers only include natural persons, and about 1/3 provinces directly bring units into the scope of consumers. The rest of the provinces have either adopted a similar expression to the elimination law, that is, the scope of the subject of consumers is not clear, or the concept of consumers is simply not regulated. On the issue of judging "living consumption", the provinces have basically not made any provisions, only the provisions of Zhejiang Province mentioned that "operators should bear double liability for providing fake and shoddy goods." Consumers should not be exempted from liability for buying too much, indicating that they hold a negative attitude towards judging whether the buyer buys goods in judicial practice. On the issue of whether education and medical services are subject to the adjustment of elimination laws, many provinces have not fully affirmed or denied them, but have made further distinctions and made different provisions. This method can provide a very meaningful reference for the supplement and perfection of elimination method. Taking into account the relevant provisions of each province and the relevant views of the theoretical circle, and defining the scope of "consumer", I think, first of all, the unit should be included in the scope of consumers, and the unit should be regarded as a consumer more in line with the legislative purpose of the elimination law. It can better protect consumers, and the legislation of more provinces recognizes the consumer status of units, even if some provinces are not clear and unspecified, but it also means that it does not of course deny that units can be regarded as consumers; Secondly, on the judgment of living consumption, especially on the issue of knowing false and buying fake, although the State Administration for Industry and Commerce issued the regulations on the implementation of Consumer Rights and interests Protection Law (draft for soliciting opinions), It holds a negative attitude towards the adjustment of the law of buying and selling forgeries, but considering that it is difficult to judge in judicial practice, the subjective purpose of those who know that counterfeiters do not affect the subjective malignancy of counterfeiters. And know that fake buying fake objective can better purify the market environment, so I think it may be more reasonable to hold a positive attitude towards this; Finally, whether education and medical services are adjusted by elimination law, the provisions of the relevant provinces provide a useful reference, that is, it is necessary to distinguish between education and the nature of medical services. As far as educational services are concerned, non-public welfare, profit-making and non-academic education can be brought into the adjustment scope of elimination law. As far as medical services are concerned, the non-basic medical services provided by for-profit medical institutions or non-profit medical institutions can be included in the scope of elimination adjustment.
【学位授予单位】：南京师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.8
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