网络购物消费者撤回权研究

发布时间：2018-09-05 18:40

【摘要】：随着近年来学界与实务界对建立消费者撤回权的呼声越来越高,我国2014年生效的修改后的《中华人民共和国消费者权益保护法》(以下简称《消费者权益保护法》)首次将撤回权以立法方式确定下来,目前主要适用于网络、电视、电话、邮购等远程购物领域。随着互联网贸易B2C、C2C、O2O模式的迅猛发展,网络购物等电子商务突飞猛进,网络购物覆盖面越来越广,在撤回权适用范围上具有典型性与相对较大的影响面。因此,本文选取网络购物领域消费者撤回权为视角,对撤回权进行全面分析,试图寻找撤回权背后的法理支撑,并结合撤回权本身可能引发的法理上的利益冲突与写入法律以来遇到的现实障碍,对现行制度进行评析,提出有待解决的难题以及相关的方案建议。论文分为四部分:第一部分首先介绍了撤回权的历史沿革,交代撤回权最初的产生原因及发展历程。其次,对比撤回权及合同解除权、撤销权、消费者选择权与知情权的属性,得出撤回权是消费者知情权与选择权的延伸的结论,将其定性为经济法上的消费者权利。再次,分析撤回权在法理上造成的冲突与平衡关系,简要说明撤回权合理性。最后,结合网络购物的特殊性,论述撤回权在此领域能够发挥的功效。第二部分全面总结了我国撤回权的现状及面临的困境。首先对目前国内撤回权以及网络购物相关立法加以梳理,进行总结评价。其后归纳撤回权典型案例中的突出问题,交代现有撤回权具体规定在实践中存在的争议,以及尚无法解决的障碍。以此展开对制度不完善、不合理之处的揭露与讨论,提出完善制度体系的要求。第三部分为国外经验借鉴。首先选取欧盟及其成员国英国、美国的消费者撤回权相关立法进行介绍,总结其立法特色及长处;其次与我国现行规定相比较,归纳出值得我国借鉴学习的内容。第四部分针对前文提出的现行撤回权存在的不足,借鉴国外关于消费者撤回权的立法经验及技术,结合我国网络购物领域的特征,分别从完善法律规范、健全网络购物领域相关制度的角度,提出完善意见,以期撤回权能够在我国顺利实施并在保护消费者权益、促进网络市场良性发展上发挥更大的积极作用。
[Abstract]:In recent years, the demand of academic and practical circles for the establishment of consumers' right to withdraw has become more and more intense. The revised Consumer Rights and interests Protection Law of the people's Republic of China (hereinafter referred to as "Consumer Rights and interests Protection Law"), which came into effect in 2014, has for the first time determined the right of withdrawal by way of legislation, which is currently mainly applicable to the Internet, television, and telephone. Mail order and other remote shopping areas. With the rapid development of the mode of Internet trade, such as E-commerce, such as online shopping, the coverage of online shopping is more and more extensive, and it has a typical and relatively large influence on the scope of application of the right of withdrawal. Therefore, this article chooses the online shopping domain consumer to withdraw the right as the angle of view, carries on the comprehensive analysis to the withdrawal right, attempts to seek the legal theory support behind the withdrawal right. Combined with the legal conflict of interest caused by the right of withdrawal itself and the practical obstacles encountered since the writing of the law, this paper makes an assessment of the current system, and puts forward some difficult problems to be solved and relevant proposals. The thesis is divided into four parts: the first part introduces the history of the right of withdrawal, the origin and development of the right of withdrawal. Secondly, by comparing the nature of the right to withdraw, the right to rescind the contract, the right of revocation, the right of choice and the right to know, the author draws the conclusion that the right of withdrawal is the extension of the right to know and the right to choose, and characterizes it as the right of consumers in economic law. Thirdly, the author analyzes the conflict and balance caused by the right of withdrawal, and explains the rationality of the right of withdrawal. Finally, combined with the particularity of online shopping, this paper discusses the effect of withdrawal right in this field. The second part summarizes the current situation and difficulties of the right of withdrawal in China. First of all, the right to withdraw the current domestic and online shopping related legislation to sort out, summary and evaluation. Then the prominent problems in the typical cases of the right of withdrawal are summarized, and the disputes existing in the practice of the specific provisions of the right of withdrawal are explained, as well as the obstacles that can not be solved. In this way, the disclosing and discussion of the imperfection and unreasonableness of the system are carried out, and the requirements of perfecting the system are put forward. The third part is the experience of foreign countries. Firstly, this paper introduces the relevant legislation of the European Union and its member states, Britain and the United States, and summarizes its legislative characteristics and advantages. Secondly, compared with the current provisions of our country, it concludes the contents that our country can learn from. The fourth part aims at the deficiency of the current right of withdrawal, draws lessons from the legislative experience and technology of foreign countries on the right of consumers to withdraw, and combines the characteristics of our country's online shopping field to perfect the legal norms, respectively. From the point of view of perfecting the relevant system in the field of online shopping, this paper puts forward some suggestions, hoping that the right of withdrawal can be implemented smoothly in our country and play a more active role in protecting the rights and interests of consumers and promoting the benign development of the network market.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923.8

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