Legitimate basis to withdraw the right of consumers
Keywords:: consumer protection, consumers, withdrawal rights, which means freedom, the contract strictly, undetermined effect Summary: The introduction of the Consumer Right to withdraw, meaning that the traditional legal theory, and poses a major challenge, an urgent need to clarify the reasons for its legitimacy. Consumers the right of withdrawal is not a legitimate basis because "the consumer is weak" or " consumer protection ", but in their formative stages in the meaning of meaning is not free. meaning the formation of mental weakness caused by lack of freedom, including freedom of the meaning and Information are not disadvantaged due to lack of freedom in both cases the meaning. does not mean the freedom of consumers problem can not be error, fraud and other systems to be addressed, and appropriate remedies to be addressed through the post, and should take preventive measures in advance to be addressed. by giving the right of withdrawal period, so consumers really consider the true meaning and form. as the withdrawal of the owner does not need to give consumers the reasons for withdrawal or even prove that the reason for withdrawal. consumers the right of withdrawal effects, including both valid and effective model, meaning that an invalid mode is to be determined invalid state, the effective mode intention is to be determined and effective state. In the former, infer the meaning of silence that has recognized to be determined invalid function effectively, while the intention to withdraw the right to have hindered the effective function in the latter, the withdrawal right may be revoked classified the type of Once the exercise of the right of withdrawal, meaning that shall be determined to be invalid.
Information obligations (Informationspflicht and the right of withdrawal (Widerrufsrecht field of consumer protection are the two traditional legal tools. China <<Consumer Protection Law "> has established a general obligation of Information rules, but there is no withdrawal right system. At present, withdrawal of the right system for consumers academic Research is still in its infancy, mostly about the German system and the withdrawal of British and American rights to the system of cooling-off period, [1] The right to withdraw from the consumer point of view deals with freedom of contract between the legitimacy of the withdrawal right system basic Research results are very rare. [2] to the existing Civil Law system in Canada the right to withdraw the system, the first is the need to consider the legitimacy of the slogan to protect consumers is sufficient to constitute grounds for withdrawal of the legitimacy of the right to do ? the answer to this question is also directly determine the right system to adjust the scope of the withdrawal, the withdrawal is to establish a general right system, or the right to establish some type of withdrawal. and the existing right of revocation, the right of cancellation rights such as the formation of different withdrawal the right to withdraw during a special system of how to determine the stArting point of the withdrawal period? how to protect the operator should be trusted to comply with the interests of the contract? withdrawal right system is fLawed existing system means that the development of the relations between the two, also worth studying. solve these problems, this paper to clarify the right of consumers to withdraw the purpose of the system's specifications, followed by freedom of contract and contract adherence of the balance between the right to withdraw the last attempt to consumers included in the existing Civil Law system in order to clarify their The status of special Law.
First, the consumer right to withdraw the purpose of the system specification
Since the 60 years since the last century, the European Union, Germany, Britain, Canada, Australia, the United States and so the provisions of the consumer to withdraw the right of succession system (Widerrufsrecht or cooling-off period with a similar system (cooling-off period, after the conclusion of the contract so that consumers have the opportunity to amend its legal act may be a hasty decision. [3] in our existing laws and regulations, also requires a consumer to withdraw the right system. such as the 2002 revised <<Shanghai Consumer Protection Ordinance>> The system that provides for the first time, [4] In 2005 the State Council promulgated the <<Direct Selling Administration>> Article 25 stipulates that direct selling business operator shall establish and implement a sound system replacement and return, and there will be no deadline for return as 30 days.
Common feature of these systems is the fact that a pArticular form described in detail by legislation (the type statutory, consumers in a certain period of time and by unilateral means that no reason is given from the contract with the operator in the free out. [5] It is worth pondering why the lawmakers to give consumers a "no result" the right of withdrawal.
Although the introduction of the consumer the right of withdrawal effects by the consumer protection movement, but its legitimacy is not to protect consumers. In fact, the transaction does not exist in the law to protect the interests of consumers and operators to have better the status of the general principles of private and private operators alike enjoy autonomy and freedom of contract, legislation regardless of which pArty favor the principle of equality is violated, it can not be the consumer to protect their right to require consumers to withdraw the legitimacy of reason.
There are scholars believe that the unequal bargaining position of the right to withdraw the legitimacy of the consumer base, intended to withdraw the right of withdrawal within the time limit so that consumers have the opportunity to be considered or to get out of the contract, so that consumers jeopardized negotiations position of equality (Verhandlungsgleichgewicht to reply. [6] The species of the inadequacies of view is that consumers can not be reflected in the contract because its content is less than the meaning of the operators of its intention to withdraw, so the view is not convincing.
As early as 1891, German scholar to propose that Heck installment sale (Abzahlungskauf regret in case of power (Reurecht system. [7] In his view, the case in the installment sale, the customer may be to induce the purchase of non essential as well as beyond the capacity of its property subject matter, the reason is psychological factors, namely, the enjoyment of current compared with future obligations it is often underestimated. [8] This proposal has not been at the time of the German legislator accepted. until 1969, the impact of the wave in the consumer movement, the German legislator was in the "<foreign Investment share sale Act"> [9] system provides the right of withdrawal. Although Heck's proposal has touched the substance of the issue, but Only the operators of solicitation factors, not enough to constitute a consumer shall have the right of withdrawal of legitimate reasons. The question is whether consumers have been affected the meaning, whether to induce behavioral problems but not the key.
(I mean the formation of barrier
Legislators are generally not provided in the law the right to withdraw the general consumer, usually only for specific situations or specific types of contracts require consumers to withdraw the right system, and the purpose of each case has different specifications.
1. The case of consumer transactions come right to withdraw
In the legislative policy, consumers and the withdrawal of the right to actually direct (Direktvertrieb the form of special sales result of the struggle. [10] In modern society, as sales of goods and services form a new guise, after another, including direct sales and network trading model rather to flourish. EU in 1985, issued for the direct sales model <<home transaction withdrawal instructions>> (85/577/EWG), established in 1986 in Germany <<Onsite Exchange Act ">. [11] The German legislator that In the case of transactions where appropriate, such as private residential consumers in the workplace and the case of a contract, there is the danger of surprise attack on the consumer and hinder the freedom of its decision. [12] in the European Union <<home transaction withdrawal instruction> > The reason for the legislation, but also that its base is "the element of surprise," the loss of surprise makes the consumer the opportunity to compare price and quality. [13] Thus, in the case of such transactions, consumers often do not show their In appropriate cases, consider that this should be made.
2. A pArticular type of contract the right to withdraw the case of consumer
Promulgated in 1894 in Germany <<installment sale Law "> no consumer right to withdraw the original system, modified in 1974 [14] the addition of installment sale right system in case of withdrawal of .1990, the Law <<Consumer Credit Act "> [15] replaced the system was expanded to withdraw the right to apply to other types of consumer installment credit, and delivery of the contract situation. lawmakers that in the case of consumer credit contracts, giving consumers the right to withdraw because: consumers can not completely determine the terms of the contract as a whole, in the negotiation of this very short period of time not because they have fully understood. [16] the contents of consumer credit contracts are more complex, if not expertise can not understand, and the huge amount of credit items, longer term, consumer loans may not correctly judge the content and its lending capacity, often being caught in the long-term debt burden, the current "housing slaves" is the title of just this situation, "portrayal."
In Germany <<installment sale Law "> after they have been in 1976, Germany enacted the <<remote teaching Protection Act">, [17] in 1990 issued a <"Insurance Contract Law">, [18] enacted in 1996, <<time-use of residential Law ">, [19] issued in 2000 <<Remote Sales Act">. [20] These laws provide that the withdrawal right system for consumers. In the case of distance selling , lawmakers believe that before the conclusion of the contract, consumers and suppliers is no personal contact, and not live to see detailed understanding of the goods or service quality, and no understanding of the relevant Information to other individuals. [21] on the remote financial services , timeshare, and consumer credit contract, consumers can not fully determine the terms of the contract as a whole, in the negotiation of this very short period of time not because they have fully understood. [22] long-term contract with a timeshare contract nature of the consumer at the conclusion of the contract may be binding not understand what it means to long-term contract, so consumers should be given a certain period in order to better check their rights and obligations. [23]
Overall, in the aforementioned first case, consumers in the mental weakness, and attack the circumstances leading to the formation of meaning can not be fully considered and, in the second case, consumers in the information on the weak, incomplete information leading to the formation of meaning not free. So, the foundation of the right of consumers to withdraw their formation is hampered by the mean (Beeintrachtigung der Willensbil-dung. [24] and the formation of such prejudice and do not really, as long as the meaning of potential prejudice to the possible formation of sex can be. [25] In essence, the legislators have been presumed in the statutory cases, the meaning of the formation of consumers has been obstructed, but the presumption can not be overturned.
Controversial is whether the right of withdrawal is limited to a particular type of contract types, such as limited contract for the sale type. German scholar Medicus Law Committee for the debt issued identification that should not be withdrawn under the provisions of the right type of contract system, but should be based on improper sales transactions and other forms of the scene to determine the right of withdrawal system. consumers the right to withdraw the legitimacy of reasons not related with the type of contract, but sales in its form so that consumers may be too hasty a decision. If the contract types to determine the right of withdrawal, how to choose the type of contract is often caught in the danger of arbitrariness. [26]
(B means an obstacle to relief
An obstacle means are, in essence, means a defect, but the meaning of the operators prevent the formation of the consumer situation, not always consistent with the composition of elements of fraud or duress, such as the subjective intent of the two elements required to have, but the meaning of the operators prevent the formation of consumers in most cases are not from intentional, and prove that the operator has the subjective intent of the more difficult. under the law on the "wrong" theory, motivation errors generally do not constitute the subject of revocation, and the formation of barrier means consumers are motivated most aspects, but also very difficult to prove motive, it can not be formed through the meaning of the error system to solve the barriers. in law the right to require consumers to withdraw before the German courts usually by the terms of public order and good morals Relief means the formation of consumer barriers, mainly related to the contract price is reasonable and whether the benefits provided for personal needs. [27] was forced to make hasty decisions in the consumer case, the court also granted the use of Faults in Contracting relief. [28] According to the contracting fault system, in contract negotiations, one party at fault advice and explain the violation of obligations under, the relative may claim damages.
Through the back of customs rules or the rules of contracting fault an obstacle course meant to give relief to some, but according to these two rules can not be built "to consider of the rules", that is considered by giving the consumer a certain period to protect the freedom of decision on legal action , only the withdrawal of special provisions for consumer rights system to accommodate "to consider of the rules." [29] After consideration period, meaning that consumers decide whether to withdraw or to mean that effective, rather than flatly denies its effectiveness.
(The real meaning of the formation of three
The legislators to determine the legal situation or legal contract type, the consumer is presumed to mean the formation is hampered. In logic, the prejudice is excluded, the consumer shall be bound by its intention, then how to determine consumer meaning no longer be hampered? In legislative techniques, the withdrawal period provided by law in order to enable consumers to truly be considered and the formation of meaning.
In German law, the withdrawal period of two weeks, since the operators to fulfill the obligations of the right to withdraw after the start the streak. Only starting the withdrawal period, consumers not only in the spirit of thinking is under pressure to withdraw the contract or to exercise the right. [ 30]
For this obligation, the law more stringent requirements, in addition to requests must be made in writing, but yet to clearly inform the exercise of the right to withdraw the exercise of the relative, the starting point and the beginning period of the rights of consumers. [31] in practice , disputes most is whether the operator is the local performance of the obligation to inform the right to withdraw the issue.
According to <"German Civil Code>> Article 355 paragraphs 2 and 3 of this article, if the operator subsequently informed the parties the obligation to fulfill the right of withdrawal, the withdrawal period of 1 month, if the operator fails to fulfill the obligations of the right to withdraw or if the goods did not arrive, then the withdrawal period of 6 months. and the right of withdrawal period is not associated to the operator's intention, but intention to make the consumer. [32]
Generally relatively short period of withdrawal rights, the provisions of German law on the 14 days. For the consumer the right of withdrawal theory is concerned, such a short period does not seem to have less practical significance, but if taking into account the starting point of the period during which the withdrawal is After the operator starting to fulfill this obligation, and you will find the above questions is a great practical significance. In the operator fails to fulfill the obligations or inform the appropriate circumstances, withdraw the right of the German period of 6 months, and according to EU Directive was no time limit, the provisions in this regard between the two clashed. Since the rule in Germany is considered to be in breach of European law, which in 2002 be amended. [33] the right to modify the terms of withdrawal for consumers , and its practical significance is even greater.
According to <"German Civil Code>> the relevant provisions of Article 312, in the case of remote sales, starting during the withdrawal rights with other information and an obligation to take delivery of the goods reach the person is related to the period beginning not earlier than the other information an obligation [34], and when the goods arrive to take delivery of one. consumers even if the relevant information, the consumer does not immediately withdraw the right to disappear, as consumers were told the information, still needs to digest the information, and compared with similar products. [35]
China <<Consumer Protection Law "> the changes should be introduced to withdraw the right to inform the operator that the obligations and obligations, so that consumers know their rights situation, and to distinguish the sales contract, credit contract or contracts to provide services, etc. During the withdrawal of a right to the starting point.
(D withdraw and return
Consumers the right to withdraw the right of return is different from the consumers, in addition to the provisions of German law the right to withdraw the general consumers, it also provides consumers the right to return. In the specific case law, such as trading and remote trading site conditions, consumers the right to withdraw the right for return (Riickgaberecht replaced, in essence, is the right of withdrawal restrictions, which can only be withdrawn by the exercise of the right to return the goods, [36] and made to measure in the interests of operators in favor of the arrangement. First of all, it reduces the operator's obligation to inform the right to withdraw, as long as consumers from the sale of advertising shown on the necessary information to infer this information, and shall have the right to withdraw the foot. [37] reduce the obligation to inform the operator the reasons is that in large-scale transactions require the operator to perform in strict duty of disclosure is too harsh, will increase transaction costs, operators will be by raising prices and spread the risks to consumers. Secondly, the burden of consumers in this case, the first obligation, the only returned through the exercise of the right of return of the subject matter, the operator of the subject matter be returned only after the obligation to bear the return. [38]
Consumers to exercise the right of return, the costs and risks borne by the operator, if the goods are not suitable to send, you can require the operator to get it back. Exercise of the right of withdrawal is limited to the return of the operator's favor, it requires an invitation to the nature of the brochure must clearly inform the return of power, and must protect consumers in the absence of the operator in detail under the right to know.
The right to withdraw the case in the consumer, consumers can return the original text form or way of intent to withdraw, but in the latter manner means that when the right of the operator in case of no return privileges. The withdrawal period , as long as the consumer sends the goods (Absendung the operator shall comply with the withdrawal of the period, meaning that the delay for the withdrawal of risk and the risk of loss, consumers are not held accountable. [39]
Second, consumer rights and contract adherence to the principle of withdrawal
(A prerequisite for the consumer to withdraw the right to form
Constitute the right of consumers to withdraw, usually to go through two levels of investigation, the first shall be constituted the relationship between consumers and operators. For what is the consumer, what is the operators, the legislation has two modes: one is dynamic system model, which only requires a number of factors to determine, but not of its type, the other is the type of model, the human factor or according to the type of provision, or under specific circumstances, based on the protection necessary to generate trading of the type of provision made. [40] <"German Civil Code>> Section 13 and 14 respectively provide the consumer with the definition of the operators, the model is based on the type of trading pattern. China <<Consumer Protection Law "> Article 2:" Consumers need to buy for the cost of living, using commodities or receiving services, their rights and interests protected by this law. "But for what it does not make provision for the operator. from its presentation to Look, which provides that the purpose of taking the type of transaction is also based on the model. that is, whether the consumer, the key is to see whether there is the purpose of living, as to whether it is business or business is non-critical elements.
Secondly, there must be legal requirements. If <"German Civil Code>> Article 312 and Article 312a of the door provides transactions, the following provisions of Article 312b of the first remote sales contracts. [41] and type in the case of statutory , have a different composition of its premise.
1. Home transactions. Above the door in case of withdrawal of trading rights, for example, constitute a prerequisite for its first deal to be home. The so-called home transaction refers to the legal situation, the consumer is signed or refused to sign the contract for the decision of the case of obstruction of freedom . [42] so-called statutory conditions, including its consumers in their workplace or residence within the oral consultation with the operators of the contract situation, the operator or a third person held, with the interests of operators of leisure activities on the occasion consumer contract is to promote the situation of transport or public transport in the raid chat areas, consumers are prompted to contract situation. In these cases, the decision was mainly directed freedom jeopardized by the surprise raid had a psychological or pressure, thus affecting the formation of meaning. [43] In "" The European Contract Law Policy "> and <<Commercial Contracts Code"> in the right system is not the consumer to withdraw, but in Europe <<general frame of reference for the draft>> (DCFR ) Article 5:201 and article 5:202 provides that it applies to all contracts entered into outside the market place and the timeshare contracts, but did not further be typed and given legitimacy reasons, there is too much of its consumer protection who is suspected. Second, the specific circumstances or situations must be limited to making intention, to mean that the so-called limited to meaning that does not mean to, but weaker than that to mean that, as long as the door to trade constitutes the meaning of that common cause can be. [44] Finally, if the above situations, a contract is a consumer pre-established, there is not surprise factor, it does not constitute a right of withdrawal, immediately after the consultations, and payment of the price paid, and the price is not more than 40 the euro, it would be irrevocable, meaning that consumers as a notary notarized the circumstances, there is no meaning to be impeding the formation of the situation, not its intention to withdraw.
2. Remote transactions. In remote sales, the consumer the right of withdrawal does not constitute the elements of the elements of the particular occasion. <"German Civil Code>> Section 312b provides, and its composition requires only" Consumers and Businesses concluded by means of remote communication using only the supply of goods or services (including financial services contract, "this element. the concept of goods and services is very broad, referring to movable goods, and services, including any point to the behavior of the contract, such as labor contracts, Contracts, game management contracts and compensation matters. [45] The so-called use of the remote means of communication refers to both the consumer and the operator did not appear the case negotiated the signing of the contract situation. [46]
Looking at the composition of the consumer right to withdraw the premise, as the person with the right to withdraw does not need to give consumers the reasons for withdrawal or even prove that the reason for withdrawal. It does not require a decision on the true meaning of prejudice, but also do not need to ask to withdraw motivation, the right of withdrawal for any real (willkilrliches Widerrufsrecht. In the case of home transaction, and the contract still need to make special occasions between the "causal relationship" of the constituent elements, and in the case of remote sales are just some objective constitute a prerequisite. The problem is so powerful lawmakers to give consumers the right of withdrawal, whether it constitutes a violation of the principles of contract strictly.
(B arbitrary adherence to the principle of withdrawal of the right to contract
In order to protect the effectiveness of any future contract, the parties shall have entered into contracts under its constraints, namely, adherence to the principles of contract. The main purpose of the principles of contract strictly to protect transactions and trust, to give contracts to the future force and effect. Contracting parties promised benefits, constraints, their In each other's economic "sacrifice", even after the interests of the state in the case of a change should also be bound by them. [47]
Contracts are strictly personal self-determination and freedom of contract (Selbstbestimmung expression. The so-called mean free, that is, the exercise of individual freedom, but also means that people actually, in the exercise of freedom to form and meaning. [48] did not mean freedom of contract binding force is unthinkable, [49] only have a conscious intention, to make the promise of flawless case, adherence to the contract have their legitimacy. [50] of the real meaning of freedom can not be guaranteed, but for others prejudice the decision of the case, there are solutions being sold prejudice the interests of the people.
However, opposition between the contract term, the interests of consumers with a solution sales, that the interests of unfettered, but the relative survival of people to enjoy and be bound by the interests and existence of a contract and binding on the trust interests there. [51] To deny the relative interests of the trust, usually with the Flaw in addition to the premise, but still need a relative who may be attributable to the subject, such as fraud or coercion under the "intentional" elements.
Interests and means to eliminate defects and is in direct proportion attributable to the subject, meaning the more serious defects, defects promised that more people may be attributable to the promise to take delivery of people, in the interests of the measure to eliminate interest on the better people, such as frauds, If you mean take delivery of the defects were not attributable to the promise, then it shall be strictly contract, such as the legislative policy to permit revoked, should be given compensation, such as errors.
Trading places in the home, the operator of liability not only depend on the particular occasion based on the threat to the freedom of decision, but on the operators to manufacture, using the occasion to produce the threat of a causal relationship. [52] operators of manufacturing and use these occasions particularly dangerous to consumers, operators should mean the formation of consumers to take higher responsibilities Moreover the operator has control means that the ability of dangerous defects. In addition, the operator is the biggest beneficiary of the transaction, the risk of conduct assigned to the profiteers have their legitimacy. operators in the nature of the act take responsibility.
Withdrawal of the right to the consumer, the operator has the right to withdraw this obligation, hence may not produce the existence of a contract of trust.
For these reasons, the withdrawal of any given consumers the right to have their legitimate reasons, and not jeopardize the interests of the trust managers and even the stability of the law. China <<Consumer Protection Law "> should be set in the amendment to withdraw the operator informed rights obligations, should be considered in the interests of the operators to measure adherence to contract the interests of the trust.
(C legal effect on the balance of interests
Is withdrawn in the case of consumer contracts, for the balance of interests between the parties, the German legislators decided to withdraw the right of consumers to apply the legal effect of the right of cancellation. In other words, expression or the contract was withdrawn, the contractual relationship into clearing relationship (Ab-wicklungsverhaeltnis. principle, the parties returned payment from each other, in such circumstances can not be returned, the value of compensation may, in certain circumstances, the termination right of the value of compensation be released from their obligation to use the benefits and costs are usually have to be returned.
Different conditions because of the benefits, the right to withdraw the legal effect of consumers there are a lot different from the right to terminate the legal effect of the Department, the consumer is only liable under the obligation to return, in principle, the cost borne by the operators. Consumers to exercise the right of withdrawal obtained from the operator to return the objects, damaged goods by the operator assumes the risk of loss.
There is also that with the right to terminate the legal effect different from that of consumers and reasonable loss of value resulting from use of, shall be liable, but the operators are required when signing the contract in writing to the effect of the law, but also to express to avoid the possibility of reduction in value. there is an exception to this rule, that is because if the value of the reduction caused to examine the goods, the consumer is liable for compensation.
The right to terminate the case, the right people for the casual or fulfilled the duty of care is still often damage resulting value does not assume liability for loss, the rule does not apply to the withdrawal rights situation. The reason is that the right of withdrawal is not an objective violation of Entrepreneur obligation constitutes a premise, but the consumer was told to enjoy the right to withdraw the case, there is no reason to trust that it can ultimately keep the subject matter. [53] If the operator did not inform the right of withdrawal according to the law, consumers only in respect of intentional or grossly liable for damages in negligence.
Third, for the right to withdraw the system of ownership
In Germany, consumers have the right system to withdraw outside the Civil Code, which appears in the special legislation. In China, there is <<Consumer Protection Law "> this basic law, the consumer should be in the right system to withdraw be stipulated in the Basic Law. But the experience of German law, which adopted a system of the ideas about the right to withdraw the special law on the uniform civil code being included in .2000, the German legislators to withdraw the right of the consumer into the civil law , the unified regulations in the "" German Civil Code>> Section 361a, by [54] and the abolition of <<Consumer Credit Act and Exchange Act >>,<< >>,<< sharing site to use residential Law "> and <<Distance Selling Act "> and other one-line method. In the January 1, 2002, after Germany and modernize the law of debt," "German Civil Code>> Section 361a shall be extended to 5, ie 355 to 359, respectively, provides for the right to constitute a prerequisite for the withdrawal, the effect and legal consequences. <"German Civil Code>> Section 312, Section 312a provides a home trading rules, the first following provisions of Article 312b of the remote sales contracts, Article 495, p. 499 , Article 503, Article 505 of the consumer credit contract, financing assistance and phased delivery contracts. [55] Although the specific type of application to withdraw the right to be different, but constitute a prerequisite for the withdrawal right, exercise and elimination of both is common, that is, the uniform application of <"German Civil Code>> Section 355 to the provisions of Article 359.
Why should consumers the right to withdraw this particular law included in the Civil Code it? The main reason is clear general relationship between law and special law. If the civil law system, independent of the special law, the law applicable, should be more consideration the application of the special law, without regard to the application of general law. Over time, the general rules of law will be as "dead letter", there is no use. same contract was subsequently sold, in the case of the contract is discharged, the legal effect of contract clearing relationships, and in the case of the right to withdraw, "<Consumer Protection Law"> without considering civil or general rules of contract law as otherwise provided, the same treatment does not meet the same conditions of the general requirements of justice. Consumers withdraw the right system for all consumer-party contracts, which account for almost half of the contractual relationship, the growing field of application, and the general law, but the limited scope of application, what is special, what is general and easy Health objection. Therefore, the right to withdraw the classified Civil Code of the consumer to have to clarify its position in the civil law system.
(A force mode
Arguably, the withdrawal period, the consumer and the legal relations between the operators on how the contract is to be determined valid or invalid to be determined? The withdrawal period, the parties are entitled to claim performance of the contract?
Links to Research Papers Download http://www.hi138.com intention and under the contract during the withdrawal state, the legal effect of the two models built on the right of withdrawal. [56]
1. Invalid model. Consumers expressed the meaning of a contract or even the entire contract before the expiration of the withdrawal does not have the force of law. To prevent the exercise of the right to withdraw the contract be effective because of silence. In June 30, 2000, before the consumer to withdraw rights have not been uniform included in <"German Civil Code> before", single law rules adopted for this effect. After this, "<foreign Investment share sale Act" "and" "Investment Company Act>> This still provides for modes of withdrawal rights. the typical stated as: the meaning of point that trade is not only the buyer in writing within two weeks to withdraw when binding. to the operators concerned, by the intention of its constraints, has not withdrawn rights. the withdrawal period, meaning that even the contract is to be determined invalid (schwebende Unwirksamkeit.
2. Effective model. According to <"German Civil Code>> Section 355 requirements (the original <" German Civil Code>> Section 361 a, paragraph 1, provides an effective consumer intention from the beginning, as long as the two sides agreed at the conclusion of the contract Both sides claim that the performance of production, but within the statutory time limit in the consumer to withdraw the intention, then its no longer bound by its intention. to the operators concerned, by the intention of its constraints, there is no right of withdrawal. During the withdrawal, meaning that even a valid contract is to be determined (schwebende Wirksamkeit.
Difference between the two modes, according to an invalid pattern, the withdrawal period, the two sides failed to fulfill warranty claims and right of claim, [57] in the effective mode, the two sides have to fulfill warranty claims and claims. In the interests of the measure , the latter is more conducive to the protection of consumers. in an invalid mode, the withdrawal right has the right to hinder the function, which means that hinder effective, and in the effective mode, the withdrawal right has the right to cancel a function. [58]
(B legal system on the effect of ownership
In contract law, as a binding legal standards that were not the real meaning of (materialer Wille, but the form of so-called mean (formaler Wille, meaning that the outward form, since the means to take delivery of human perspective. And the So the meaning of an action in the form of binding is decisive, the reason is not in their own, but based on a presumption that the ideographic form of real meaning, real meaning of performance. Therefore, if the mean deviation from the real meaning of the form or as the basis of the meaning that is not free, the law would prevent its effectiveness. [59]
According to defects mean that the external degree and effectiveness of defect, the law provides a means by four forms of protection mechanisms for the true meaning of constraints: (1) the subjective meaning of the facts that constitute a system, such that mean that mean that the necessary constituent elements, with that meaning is not the case, meaning that that is not true. (2) ineffective system, such as violation of the law or good morals and void. (3) undetermined effect, such as the limited capacity of people whom behavior, its effectiveness to be determined. ( 4) The revocation, such as fraud or misconduct.
As noted above, the effectiveness of the consumer the right of withdrawal, there are two models, the effectiveness of these two models, the withdrawal of the right to vest on in the system are different.
1. Invalid mode system ownership. Invalid mode type can be attributed to human effects to be determined. At this point, meaning that more significant defects, it is legally vague sense of beginning for the table is not binding, but afterwards to ratify or otherwise after effective.
Can be compared with the consumer right to withdraw is limited capacity to be determined the validity of legal acts of the state. In the spirit of the disadvantaged and vulnerable types of information, consumers at the conclusion of the contract were a "no capacity" situation, this ability is economic capacity (wirtschaftliche Geschaftsfahigkeit). [60]
But with limited capacity to be determined under the effect of different rules, meaning that force of ratification is not through a third person, but after the withdrawal period, the previous meaning of that effect will occur. Time after the effect is through silence the way performance, and by infer the real meaning of silence confirmed the original meaning of the load, said the legislators intention is typed, not conclusive, and postponed to take effect until after the period to the principal. [61] During the withdrawal the expiry of that period thought through, consumers get the meaning to the expression of the ability of the operator.
Some scholars believe that the presumption of silence is not a legal act, but a legal act (Rechtshandlung, the system does not apply to legal acts in the capacity and ability to conduct the premise of the rules. Because even if the subjective intention constitutes the precondition is not met, the legal effect of the withdrawal has occurred, that the right to break silence appearance, so that the contract determined to be invalid. [62] Therefore, the system does not apply to legal acts in the capacity and ability to conduct the premise of the rules.
Silence is the confirmation that the original meaning, has said the effect of a revocable, such as those based on the legal significance of the error silent revoke the silent, but because the law provides for the obligation to inform the operator, so there is almost no mistake possible.
Doubt is whether the retroactive effect of silence. The behavior of nature, silence is a confirmation (Bestatigung, so its no retroactive effect, no effect of the past, as is recognized in the legal nature of the new behavior. [63]
In the void model, the right to withdraw the right to form itself, that can be ruled out through a unilateral intention has been made, namely, the right to change the situation. In theory, even if the contract is not fully effective or to be determined invalid, can also have the right to form effect. For example, an invalid legal act can be revoked. [64]
2. Effective mode of system ownership. Effective type of model can be classified as avoidable. In lawmakers view, its meaning is not very serious flaws, it provides the beginning effective, but later withdrawn, the withdrawal has a retroactive effect. Consumption者撤销权与可撤销制度类似,与解除权制度并不类似,解除权制度的规范目的并不在于保护表示人的实质意思自由.[65]
撤销权以意思瑕疵为前提,而撤回权的行使并不需要说明任何理由.这一点并不能否认撤回权类似于撤销权,因为二者在功能上是一致的,都是为了保护自由意思的形成.在撤回权情况下,虽然不需要意思瑕疵这一要件,但需要法定类型这一前提,法定类型免除了消费者证明意思形成瑕疵的义务.在法定类型情况下,意思表示瑕疵为法律所推定,且不可推翻.[66]
根据<<德国民法典>>第355条第1款第1句的表述,行使撤回权后,消费者不再受其整个意思表示的拘束,而非不再受约定的给付交换约束.故类似于撤销权的消费者撤回权,具有溯及既往地废止意思表示之效力.[67]
根据<<德国民法典>>第144条的规定,撤回权是不可被抛弃的,因为抛弃在法律性质上类似于可撤销意思表示的确认,[68]其前提是撤销权人有可能知道撤销以及作为撤销原因的错误.由此,在确认可撤回的意思表示时,其前提也是表示人有能力自己决定,但在撤回期限经过前,根据法定的评价,表示人并无自决能力,故在撤回期间届满前,不能放弃撤回权.[69]
(三消费者撤回权并非解除权
关于撤回权的性质,在德国自上个世纪90年代起,越来越多的学者主张消费者撤回权是解除权的特别类型.合同自始有效,消费者行使撤回权后,合同关系转化为类似合同的返还之债(vertragsahnliches Ruckgewahrschuldverhaltnis).[70]
我国有学者认为,消费者可以对已作出的要约或承诺的意思表示予以单方面撤销,即使合同已经成立,消费者也可以单方面解除合同.[71]根据该表述,撤销权的实质是解除权.主张消费者撤回权为解除权的主要理由为,在撤回意思表示之前,双方当事人均具有合同上的履行请求权,单方的意思表示可以排除双方履行请求权,并确立返还之债的关系.在体系上,<<德国民法典>>将其规定在"解除权"一节,十分类似于双方合意约定解除权之情形.[72]
笔者认为,消费者撤回权并非解除权.解除权针对的是履行障碍之情况,而消费者撤回权针对的是合同成立阶段意思实质不自由的情况.合同解除权所针对者,是合同有效成立后履行阶段出现的障碍,与合同阶段的意思表示是否具有瑕疵并无关联,而且在消费者行使撤回权前,合同效力并非确定有效,而是待定有效(schwebende Wirksamkeit,[73]但在解除权情况下,合同是完全和确定有效的.撤回权的行使情况不限于合同情形,在经营者没有对消费者要约进行承诺的情况下,仍然可以撤回,但此时并无解除之可能.
虽然撤销的法律效果是不当得利之返还,但规定消费者撤回权的法律效果为不当得利返还关系,却存在不合理之处.例如,在不当得利人善意的情况下,其仅负有返还既存利益之义务,在消费者撤回权情况下,通常企业须履行告知义务,并不存在善意不当得利的情况.有鉴于此,德国立法者将消费者撤回权的法律效果规定为解除权的法律效果.
但这里似乎存在一个矛盾,撤回权在法律性质上类似于撤销权,但在法律效果上,<<德国民法典>>明文规定其不适用于不当得利之规定,而同于解除权的法律效果.据此,能否认为撤回权是一种特别的解除权呢?答案是否定的.首先,德国联邦政府认为撤回权规则比较类似于效力待定法律规则,即将其规定在<<德国民法典>>第 130条以下,但并没有将其规定在总则部分,因为其法律效果为解除权的法律效果,如果将撤回权的构成和行使规则与法律效果分别规定,会增加理解与适用的难度,故将其规定在解除权之后、债法总则之中.[74]也就是说,德国立法者即使规定撤回权的法律效果与解除权的法律效果相同,也没有认为撤回权的法律性质就是解除权.其次,从解除权法律效果的历史发展来看,其本身不过是不当得利法律效果的特别规定,在合同标的物毁损灭失的风险分配以及在用益返还与费用返回上作了不同于不当得利法律效果的规定.在规则结构上二者是一致的,即起决定性作用的都是给付受领人与返还债权人是否已经知道具体合同失败的可能性,以及受领人是否以及在多大程度上对返还之标的物的毁损灭失有过错.[75]
IV, Conclusion
消费者撤回权之规范目的在于救济消费者意思形成之障碍,在其于精神上或信息上处于弱势的情况下,给予消费者一定期间予以思考,由其决定撤回意思表示还是使意思表示产生效力.
撤回期间制度为消费者撤回权制度中的核心内容,其应当以经营者告知撤回权、收到货物或者获取信息等时点开始起算,起算点之确定应以其能够真实形成意思为准.
消费者撤回权不同于消费者退回权,后者较有利于经营者,不仅告知义务有所减弱,而且消费者存在先履行之义务,故仅在特定领域中存有特别理由情况下方才应予允许,还是应以消费者撤回权为一般之原则.
在消费者撤回权的构成前提上,作为撤回权人的消费者并不需要给出撤回之理由甚或证明其撤回之理由,既不需要有对意思决定的真实妨碍,也不需要考虑撤回动机,其实质为任意之撤回权.在利益衡量上,消费者解销契约的自由与经营者信赖契约严守的利益相冲突.要否认相对人的信赖利益,除了须具备意思表示瑕疵之前提外,尚需要有可归责于相对人的事由,于上门交易或远程销售情况下,可归责事由来自于经营者的行为,其为行为责任,并不根据过错归责.由于经营者负有告知撤回权以及信息提供之义务,其并无信赖契约将来有约束力之根据,故赋予消费者撤回权有其合理根据.
消费者撤回权的效力有两种模式,一种是无效模式,一种是有效模式.无效模式下的意思表示处于待定无效状态,有效模式下的意思表示处于待定有效状态.在前者,推断之沉默具有确认待定无效意思表示有效的功能,而撤回权具有阻碍意思表示有效的功能,在后者,撤回权可以归入可撤销之类型,一旦行使撤回权,意思表示即为确定无效.
Notes:
[1]参见迟颖:<<论德国法上以保护消费者为目的之撤回权>>,<<政治与法律>>2008年第6期,周显志、陈小龙:<<试论消费信用合同"冷却期"制度>>,<<法商研究>>2002年第5期,严欢欢:<<冷却期制度研究>>,<<河南高等专科学校学报>>2007年第4期.
[2]参见张学哲:<<消费者撤回权制度与合同自由原则—以中国民法法典化为背景>>,<<比较法研究>>2009年第6期.
[3]Vgl. HKK zum BGB／Schmoeckel, § § 312 if.,Rn.75; Medicus/Lorenz, SchuldrechtI, AllgemeinerTeil,18.Auflage,2008, S.282, Rn.585.
[4]<<上海市消费者权益保护条例>>第28条规定:"经营者以上门方式推销商品的,应当征得被访问消费者的同意.上门推销时,推销人员应当出示表明经营者授权上门推销的文件和推销人员的身份证件,并以书面方式向消费者告知推销商品的性能、特性、型号、价格、售后服务和经营地址等内容.经营者上门推销的商品,消费者可以在买受商品之日起7日内退回商品,不需要说明理由,但商品的保质期短于7日的除外.商品不污不损的,退回商品时消费者不承担任何费用."
[5]Vgl． G. Reiner, Der vebraucherschtltzende Widemif im Recht der Willenserkdanmg, AcP 2003, S.4.
[6]Vgl． Wolf/Iarenz, Allgemeiner Teil des BGB, 2004,§39, Rn.20, S.718.
[7]Vgl. Heck, Wie ist den Mi(3brauchen, welche sich bei den Abzahlungsgeschliften herausgestellt haben, entgegenzuwirken 131, 180f.,192.
[8]同上注,第148页.
[9]Vgl. Gesetz tlber den Vertrieb auslandischer Investmentanteile und fiber die Besteuenmg der Ertrgge aus auslandischen Investmentan-teilen v. 28. 7. 1969. BGB1 1986.
[10]Vgl. Lorenz, Der Schutz vor dem unerwtlnschten Vertrag, 1997, 5.123.
[11]Vgl． Gesetz fiber den Widerruf von Haustargeschaften mid hnlichen Geschliften v. 16.1.1986, BGBI 1122.
[12]Vgl． Staudinger/Kaiser, BGB, Neubearbeitung 2004,§355, Rn.6; Wolf/Larenz, Allgemeiner Teil des BGB, 2004, § 39, Rn.11, S.715.
[13]Vgl. H. Eidenm(Mer, Die Rechtfertigung、Widernifsrechten, AcP 210, S.68.
[14]Vgl.Gesetz betreflend die Abzahlungsgeschaftev.16. 5.1894, geandert durch Gesetz v. 15.5.1974, BGB1 I 1669.
[15]Vgl． Verbraucherkreditgesetz v. 17.12.1990, BGBI 2840.
[16]Wolf/Larenz, ABgemeiner Teil des BGB, 2004,§39, Rn.18, S.717.
[17]Vgl． Gesetz zum Schutz der Teilnehmer am Femunterricht v. 24.8.1976, BGB1 12525.
[18]Vgl. Gesetz Ober den Versichemngsvertrag v. 30.5.1908, getndert durch Gesetz zur Andening versichemngsrechtlicher Vorschriftenv. 17.12.1990, BGB12864.
[19]Vgl. Gesetz fiber die Verauβerung． Teilzeitnutzungsrechten an Wohngebauden v. 20.12.1996, BGBI 12154.
[20]Vgl. Femabsatzgesetz v. 27.6.2000, BGB1 I897.
[21]Vgl． Staudinger/Kaiser, BGB,Neubeatbeitung 2004, § 355, Rn.7;同前注[3], Medicus、 Lorenz书,第285页,边码592.
[22]Vgl． Wolf/Larenz, Allgemeiner Teil des BGB, 2004,§39, Rn.18, S.717.
[23]同前注[13], H. Eidenmaller文,第68页.
[24]同前注[5], G. Reiner文,第9页.
[25]同前注[13], H. Eidenmttller文,第71页.
[26]Vgl. Medicus, Verschulden bei Vertragsverhandlungen, in Gutachten und Vorschlage zur Uberarheitung des Schuldrechts, Band I,2000, S.519 ff．
[27]上门与刚成年的、无收入、无财产的高中生签订"嫁妆置办合同",价款12000马克,该合同被法院认定违背善良风俗(BGH NJW 1982, 1457),诱导精神、身体残疾老人仓促决定签订超出其履行能力并无需要的房屋粉刷合同,价值14000马克,该合同也被宣布违背善良风俗(OLG Frankfurt NJW-RR 1988, 501.
[28]Vgl. LG Oldenburg MDR 1969, 392; AG Nttrtingen NJW-RR 1996, 392.
[29]Vgl. Begr. BR-Entwurf, BT-Drucks.7/4078, S.8.
[30]同前注[5], G. Reiner文,第10页.
[31]Vgl. BGH NJW 2007, 1946,同前注[3], Medicus/Lorenz书,第288页,边码600.
[32]同前注[3], Medicus/Lorenz书,第288页,边码599.
[33]Vgl. EuGH NJW 2002, 281, in Brox/Walker, Allgemeines Schuldrecht, 34. Aufl.,S.192.
[34]针对信息不对称的情况,德国法规定了经营者的信息提供义务.经营者对于合同标的的重要细节要提供信息,如果经营者没有提供相关信息给消费者,或者导致消费者意思表示无效,或者导致撤回期间不起算.
[35]同前注[5], G. Reiner文,第10页.
[36]Vgl. Brox/Walker, ABgemeines Schuldrecht, 34. Aufl.,S.192.
[37]Vgl. Staudinger/Kaiser, BGB, Neubearbeitung 2004, § 356, Rn.2.
[38]Vgl． Staudinger/Kaiser, BGB, Neubearbeitung 2004,§355, Rn.3.
[39]同前注[3], Medicus/Lorenz书,第288页,边码598.
[40]Vgl. HKK zum BGB/Duve,§§1-14, Rn.78.
[41]Vgl． Staudinger/Kaiser, BGB, Neubearbeitung 2004,§355, Rn.5,同前注[36], Brox、 Walker书,第189页.
[42]同前注[36], Brox/Walker书,第181页.
[43]同前注[3], Medicua/Lovenz书,第283页,边码586.
[44]同上注,第283页,边码587.
[45]同前注[3], Medicus/Lorew书,第283页,边码592.
[46]同前注[36], Brox/Walker书,第186页.
[47]同前注[10], Lorenz书,第29页.
[48]Vg1. Flume, Allgemeiner Teil des BGB, 3. Auflage, 1979, II, S. 49.
[49]Vgl. Stathopoulos, Probleme der Vertragsbindung und Vertragsltsung in rechtsvergleichender Betrachtung, AcP 194, S.543, 552.
[50]同前注[10], Lorenz书,第28页以下.
[51]同上注,第38页.
[52]同上注,第164页.
[53]同前注[3], Medicus/Lorenz书,第290页,边码604.
[54]Vgl. Gesetz ttber Femabsatzvertrage und andere Fragen des Verbraucherrechts sowie zur Umstellung． Vorschriften aus Eum am 30.6. 2000, BGBI I897.
[55]<<德国民法典>>的一般性规定可以适用于远程授课之情形,但不能适用于<<外国投资份额销售法>>、<<投资公司法>>以及<<保险合同法>>规定之情形.
[56]同前注[5], G. Reiner文,第4页以下.
[57]Vgl. B. Boemke, Das Wiedemifarecht in allgeniinen Verbraucherschutzrecht, AcP 2003,S.165; Certa, Widemrf und Schwebende Umwirksamkeit, 2000, 33.
[58]同上注,B. Boemke文,第166页.
[59]同前注[5], G. Reiner文,第15页.
[60]同上注,第19页.
[61]同上注,第20页.
[62]同上注,第21页.对于无效行为确认的理论,参见[德]迪特尔·梅迪库斯:<<德国民法总论>>,邵建东译,法律出版社2000年版,第404页以下.
[63]同上注,迪特尔·梅迪库斯书,第405页.
[64]此即Kipp的法律上双重效果说,参见前注[57],B.Boemke文,第178页.
[65]同前注[5], G. Reiner文,第27页.
[66]同上注,第28页.
[67]同上注,第30页;Gernhuber, WM 1998,1797,1804.
[68]对于无效行为确认的理论,参见前注[62],迪特尔·梅迪库斯书,第407页
[69]同前注[5], G. Reiner文,第36页.
[70]Vgl. HKK zum BGB, § 355, Rn.46.
[71]参见金福海:<<消费者法论>>,北京大学出版社2005年版,第169页.
[72]Vgl. Staudinger/Kaiser, BGB, Neubearbeitung 2004, § 355, Rn.18.
[73]Vgl. Mankowski, WM 2001, 793, 794.
[74]同前注[10], Lorenz书,第129页.
[75]同前注[5], G.Reiner文,第33页.
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First, the consumer right to withdraw the purpose of the system specification
Since the 60 years since the last century, the European Union, Germany, Britain, Canada, Australia, the United States and so the provisions of the consumer to withdraw the right of succession system (Widerrufsrecht or cooling-off period with a similar system (cooling-off period, after the conclusion of the contract so that consumers have the opportunity to amend its legal act may be a hasty decision. [3] in our existing laws and regulations, also requires a consumer to withdraw the right system. such as the 2002 revised <<Shanghai Consumer Protection Ordinance>> The system that provides for the first time, [4] In 2005 the State Council promulgated the <<Direct Selling Administration>> Article 25 stipulates that direct selling business operator shall establish and implement a sound system replacement and return, and there will be no deadline for return as 30 days.
Common feature of these systems is the fact that a pArticular form described in detail by legislation (the type statutory, consumers in a certain period of time and by unilateral means that no reason is given from the contract with the operator in the free out. [5] It is worth pondering why the lawmakers to give consumers a "no result" the right of withdrawal.
Although the introduction of the consumer the right of withdrawal effects by the consumer protection movement, but its legitimacy is not to protect consumers. In fact, the transaction does not exist in the law to protect the interests of consumers and operators to have better the status of the general principles of private and private operators alike enjoy autonomy and freedom of contract, legislation regardless of which pArty favor the principle of equality is violated, it can not be the consumer to protect their right to require consumers to withdraw the legitimacy of reason.
There are scholars believe that the unequal bargaining position of the right to withdraw the legitimacy of the consumer base, intended to withdraw the right of withdrawal within the time limit so that consumers have the opportunity to be considered or to get out of the contract, so that consumers jeopardized negotiations position of equality (Verhandlungsgleichgewicht to reply. [6] The species of the inadequacies of view is that consumers can not be reflected in the contract because its content is less than the meaning of the operators of its intention to withdraw, so the view is not convincing.
As early as 1891, German scholar to propose that Heck installment sale (Abzahlungskauf regret in case of power (Reurecht system. [7] In his view, the case in the installment sale, the customer may be to induce the purchase of non essential as well as beyond the capacity of its property subject matter, the reason is psychological factors, namely, the enjoyment of current compared with future obligations it is often underestimated. [8] This proposal has not been at the time of the German legislator accepted. until 1969, the impact of the wave in the consumer movement, the German legislator was in the "<foreign Investment share sale Act"> [9] system provides the right of withdrawal. Although Heck's proposal has touched the substance of the issue, but Only the operators of solicitation factors, not enough to constitute a consumer shall have the right of withdrawal of legitimate reasons. The question is whether consumers have been affected the meaning, whether to induce behavioral problems but not the key.
(I mean the formation of barrier
Legislators are generally not provided in the law the right to withdraw the general consumer, usually only for specific situations or specific types of contracts require consumers to withdraw the right system, and the purpose of each case has different specifications.
1. The case of consumer transactions come right to withdraw
In the legislative policy, consumers and the withdrawal of the right to actually direct (Direktvertrieb the form of special sales result of the struggle. [10] In modern society, as sales of goods and services form a new guise, after another, including direct sales and network trading model rather to flourish. EU in 1985, issued for the direct sales model <<home transaction withdrawal instructions>> (85/577/EWG), established in 1986 in Germany <<Onsite Exchange Act ">. [11] The German legislator that In the case of transactions where appropriate, such as private residential consumers in the workplace and the case of a contract, there is the danger of surprise attack on the consumer and hinder the freedom of its decision. [12] in the European Union <<home transaction withdrawal instruction> > The reason for the legislation, but also that its base is "the element of surprise," the loss of surprise makes the consumer the opportunity to compare price and quality. [13] Thus, in the case of such transactions, consumers often do not show their In appropriate cases, consider that this should be made.
2. A pArticular type of contract the right to withdraw the case of consumer
Promulgated in 1894 in Germany <<installment sale Law "> no consumer right to withdraw the original system, modified in 1974 [14] the addition of installment sale right system in case of withdrawal of .1990, the Law <<Consumer Credit Act "> [15] replaced the system was expanded to withdraw the right to apply to other types of consumer installment credit, and delivery of the contract situation. lawmakers that in the case of consumer credit contracts, giving consumers the right to withdraw because: consumers can not completely determine the terms of the contract as a whole, in the negotiation of this very short period of time not because they have fully understood. [16] the contents of consumer credit contracts are more complex, if not expertise can not understand, and the huge amount of credit items, longer term, consumer loans may not correctly judge the content and its lending capacity, often being caught in the long-term debt burden, the current "housing slaves" is the title of just this situation, "portrayal."
In Germany <<installment sale Law "> after they have been in 1976, Germany enacted the <<remote teaching Protection Act">, [17] in 1990 issued a <"Insurance Contract Law">, [18] enacted in 1996, <<time-use of residential Law ">, [19] issued in 2000 <<Remote Sales Act">. [20] These laws provide that the withdrawal right system for consumers. In the case of distance selling , lawmakers believe that before the conclusion of the contract, consumers and suppliers is no personal contact, and not live to see detailed understanding of the goods or service quality, and no understanding of the relevant Information to other individuals. [21] on the remote financial services , timeshare, and consumer credit contract, consumers can not fully determine the terms of the contract as a whole, in the negotiation of this very short period of time not because they have fully understood. [22] long-term contract with a timeshare contract nature of the consumer at the conclusion of the contract may be binding not understand what it means to long-term contract, so consumers should be given a certain period in order to better check their rights and obligations. [23]
Overall, in the aforementioned first case, consumers in the mental weakness, and attack the circumstances leading to the formation of meaning can not be fully considered and, in the second case, consumers in the information on the weak, incomplete information leading to the formation of meaning not free. So, the foundation of the right of consumers to withdraw their formation is hampered by the mean (Beeintrachtigung der Willensbil-dung. [24] and the formation of such prejudice and do not really, as long as the meaning of potential prejudice to the possible formation of sex can be. [25] In essence, the legislators have been presumed in the statutory cases, the meaning of the formation of consumers has been obstructed, but the presumption can not be overturned.
Controversial is whether the right of withdrawal is limited to a particular type of contract types, such as limited contract for the sale type. German scholar Medicus Law Committee for the debt issued identification that should not be withdrawn under the provisions of the right type of contract system, but should be based on improper sales transactions and other forms of the scene to determine the right of withdrawal system. consumers the right to withdraw the legitimacy of reasons not related with the type of contract, but sales in its form so that consumers may be too hasty a decision. If the contract types to determine the right of withdrawal, how to choose the type of contract is often caught in the danger of arbitrariness. [26]
(B means an obstacle to relief
An obstacle means are, in essence, means a defect, but the meaning of the operators prevent the formation of the consumer situation, not always consistent with the composition of elements of fraud or duress, such as the subjective intent of the two elements required to have, but the meaning of the operators prevent the formation of consumers in most cases are not from intentional, and prove that the operator has the subjective intent of the more difficult. under the law on the "wrong" theory, motivation errors generally do not constitute the subject of revocation, and the formation of barrier means consumers are motivated most aspects, but also very difficult to prove motive, it can not be formed through the meaning of the error system to solve the barriers. in law the right to require consumers to withdraw before the German courts usually by the terms of public order and good morals Relief means the formation of consumer barriers, mainly related to the contract price is reasonable and whether the benefits provided for personal needs. [27] was forced to make hasty decisions in the consumer case, the court also granted the use of Faults in Contracting relief. [28] According to the contracting fault system, in contract negotiations, one party at fault advice and explain the violation of obligations under, the relative may claim damages.
Through the back of customs rules or the rules of contracting fault an obstacle course meant to give relief to some, but according to these two rules can not be built "to consider of the rules", that is considered by giving the consumer a certain period to protect the freedom of decision on legal action , only the withdrawal of special provisions for consumer rights system to accommodate "to consider of the rules." [29] After consideration period, meaning that consumers decide whether to withdraw or to mean that effective, rather than flatly denies its effectiveness.
(The real meaning of the formation of three
The legislators to determine the legal situation or legal contract type, the consumer is presumed to mean the formation is hampered. In logic, the prejudice is excluded, the consumer shall be bound by its intention, then how to determine consumer meaning no longer be hampered? In legislative techniques, the withdrawal period provided by law in order to enable consumers to truly be considered and the formation of meaning.
In German law, the withdrawal period of two weeks, since the operators to fulfill the obligations of the right to withdraw after the start the streak. Only starting the withdrawal period, consumers not only in the spirit of thinking is under pressure to withdraw the contract or to exercise the right. [ 30]
For this obligation, the law more stringent requirements, in addition to requests must be made in writing, but yet to clearly inform the exercise of the right to withdraw the exercise of the relative, the starting point and the beginning period of the rights of consumers. [31] in practice , disputes most is whether the operator is the local performance of the obligation to inform the right to withdraw the issue.
According to <"German Civil Code>> Article 355 paragraphs 2 and 3 of this article, if the operator subsequently informed the parties the obligation to fulfill the right of withdrawal, the withdrawal period of 1 month, if the operator fails to fulfill the obligations of the right to withdraw or if the goods did not arrive, then the withdrawal period of 6 months. and the right of withdrawal period is not associated to the operator's intention, but intention to make the consumer. [32]
Generally relatively short period of withdrawal rights, the provisions of German law on the 14 days. For the consumer the right of withdrawal theory is concerned, such a short period does not seem to have less practical significance, but if taking into account the starting point of the period during which the withdrawal is After the operator starting to fulfill this obligation, and you will find the above questions is a great practical significance. In the operator fails to fulfill the obligations or inform the appropriate circumstances, withdraw the right of the German period of 6 months, and according to EU Directive was no time limit, the provisions in this regard between the two clashed. Since the rule in Germany is considered to be in breach of European law, which in 2002 be amended. [33] the right to modify the terms of withdrawal for consumers , and its practical significance is even greater.
According to <"German Civil Code>> the relevant provisions of Article 312, in the case of remote sales, starting during the withdrawal rights with other information and an obligation to take delivery of the goods reach the person is related to the period beginning not earlier than the other information an obligation [34], and when the goods arrive to take delivery of one. consumers even if the relevant information, the consumer does not immediately withdraw the right to disappear, as consumers were told the information, still needs to digest the information, and compared with similar products. [35]
China <<Consumer Protection Law "> the changes should be introduced to withdraw the right to inform the operator that the obligations and obligations, so that consumers know their rights situation, and to distinguish the sales contract, credit contract or contracts to provide services, etc. During the withdrawal of a right to the starting point.
(D withdraw and return
Consumers the right to withdraw the right of return is different from the consumers, in addition to the provisions of German law the right to withdraw the general consumers, it also provides consumers the right to return. In the specific case law, such as trading and remote trading site conditions, consumers the right to withdraw the right for return (Riickgaberecht replaced, in essence, is the right of withdrawal restrictions, which can only be withdrawn by the exercise of the right to return the goods, [36] and made to measure in the interests of operators in favor of the arrangement. First of all, it reduces the operator's obligation to inform the right to withdraw, as long as consumers from the sale of advertising shown on the necessary information to infer this information, and shall have the right to withdraw the foot. [37] reduce the obligation to inform the operator the reasons is that in large-scale transactions require the operator to perform in strict duty of disclosure is too harsh, will increase transaction costs, operators will be by raising prices and spread the risks to consumers. Secondly, the burden of consumers in this case, the first obligation, the only returned through the exercise of the right of return of the subject matter, the operator of the subject matter be returned only after the obligation to bear the return. [38]
Consumers to exercise the right of return, the costs and risks borne by the operator, if the goods are not suitable to send, you can require the operator to get it back. Exercise of the right of withdrawal is limited to the return of the operator's favor, it requires an invitation to the nature of the brochure must clearly inform the return of power, and must protect consumers in the absence of the operator in detail under the right to know.
The right to withdraw the case in the consumer, consumers can return the original text form or way of intent to withdraw, but in the latter manner means that when the right of the operator in case of no return privileges. The withdrawal period , as long as the consumer sends the goods (Absendung the operator shall comply with the withdrawal of the period, meaning that the delay for the withdrawal of risk and the risk of loss, consumers are not held accountable. [39]
Second, consumer rights and contract adherence to the principle of withdrawal
(A prerequisite for the consumer to withdraw the right to form
Constitute the right of consumers to withdraw, usually to go through two levels of investigation, the first shall be constituted the relationship between consumers and operators. For what is the consumer, what is the operators, the legislation has two modes: one is dynamic system model, which only requires a number of factors to determine, but not of its type, the other is the type of model, the human factor or according to the type of provision, or under specific circumstances, based on the protection necessary to generate trading of the type of provision made. [40] <"German Civil Code>> Section 13 and 14 respectively provide the consumer with the definition of the operators, the model is based on the type of trading pattern. China <<Consumer Protection Law "> Article 2:" Consumers need to buy for the cost of living, using commodities or receiving services, their rights and interests protected by this law. "But for what it does not make provision for the operator. from its presentation to Look, which provides that the purpose of taking the type of transaction is also based on the model. that is, whether the consumer, the key is to see whether there is the purpose of living, as to whether it is business or business is non-critical elements.
Secondly, there must be legal requirements. If <"German Civil Code>> Article 312 and Article 312a of the door provides transactions, the following provisions of Article 312b of the first remote sales contracts. [41] and type in the case of statutory , have a different composition of its premise.
1. Home transactions. Above the door in case of withdrawal of trading rights, for example, constitute a prerequisite for its first deal to be home. The so-called home transaction refers to the legal situation, the consumer is signed or refused to sign the contract for the decision of the case of obstruction of freedom . [42] so-called statutory conditions, including its consumers in their workplace or residence within the oral consultation with the operators of the contract situation, the operator or a third person held, with the interests of operators of leisure activities on the occasion consumer contract is to promote the situation of transport or public transport in the raid chat areas, consumers are prompted to contract situation. In these cases, the decision was mainly directed freedom jeopardized by the surprise raid had a psychological or pressure, thus affecting the formation of meaning. [43] In "" The European Contract Law Policy "> and <<Commercial Contracts Code"> in the right system is not the consumer to withdraw, but in Europe <<general frame of reference for the draft>> (DCFR ) Article 5:201 and article 5:202 provides that it applies to all contracts entered into outside the market place and the timeshare contracts, but did not further be typed and given legitimacy reasons, there is too much of its consumer protection who is suspected. Second, the specific circumstances or situations must be limited to making intention, to mean that the so-called limited to meaning that does not mean to, but weaker than that to mean that, as long as the door to trade constitutes the meaning of that common cause can be. [44] Finally, if the above situations, a contract is a consumer pre-established, there is not surprise factor, it does not constitute a right of withdrawal, immediately after the consultations, and payment of the price paid, and the price is not more than 40 the euro, it would be irrevocable, meaning that consumers as a notary notarized the circumstances, there is no meaning to be impeding the formation of the situation, not its intention to withdraw.
2. Remote transactions. In remote sales, the consumer the right of withdrawal does not constitute the elements of the elements of the particular occasion. <"German Civil Code>> Section 312b provides, and its composition requires only" Consumers and Businesses concluded by means of remote communication using only the supply of goods or services (including financial services contract, "this element. the concept of goods and services is very broad, referring to movable goods, and services, including any point to the behavior of the contract, such as labor contracts, Contracts, game management contracts and compensation matters. [45] The so-called use of the remote means of communication refers to both the consumer and the operator did not appear the case negotiated the signing of the contract situation. [46]
Looking at the composition of the consumer right to withdraw the premise, as the person with the right to withdraw does not need to give consumers the reasons for withdrawal or even prove that the reason for withdrawal. It does not require a decision on the true meaning of prejudice, but also do not need to ask to withdraw motivation, the right of withdrawal for any real (willkilrliches Widerrufsrecht. In the case of home transaction, and the contract still need to make special occasions between the "causal relationship" of the constituent elements, and in the case of remote sales are just some objective constitute a prerequisite. The problem is so powerful lawmakers to give consumers the right of withdrawal, whether it constitutes a violation of the principles of contract strictly.
(B arbitrary adherence to the principle of withdrawal of the right to contract
In order to protect the effectiveness of any future contract, the parties shall have entered into contracts under its constraints, namely, adherence to the principles of contract. The main purpose of the principles of contract strictly to protect transactions and trust, to give contracts to the future force and effect. Contracting parties promised benefits, constraints, their In each other's economic "sacrifice", even after the interests of the state in the case of a change should also be bound by them. [47]
Contracts are strictly personal self-determination and freedom of contract (Selbstbestimmung expression. The so-called mean free, that is, the exercise of individual freedom, but also means that people actually, in the exercise of freedom to form and meaning. [48] did not mean freedom of contract binding force is unthinkable, [49] only have a conscious intention, to make the promise of flawless case, adherence to the contract have their legitimacy. [50] of the real meaning of freedom can not be guaranteed, but for others prejudice the decision of the case, there are solutions being sold prejudice the interests of the people.
However, opposition between the contract term, the interests of consumers with a solution sales, that the interests of unfettered, but the relative survival of people to enjoy and be bound by the interests and existence of a contract and binding on the trust interests there. [51] To deny the relative interests of the trust, usually with the Flaw in addition to the premise, but still need a relative who may be attributable to the subject, such as fraud or coercion under the "intentional" elements.
Interests and means to eliminate defects and is in direct proportion attributable to the subject, meaning the more serious defects, defects promised that more people may be attributable to the promise to take delivery of people, in the interests of the measure to eliminate interest on the better people, such as frauds, If you mean take delivery of the defects were not attributable to the promise, then it shall be strictly contract, such as the legislative policy to permit revoked, should be given compensation, such as errors.
Trading places in the home, the operator of liability not only depend on the particular occasion based on the threat to the freedom of decision, but on the operators to manufacture, using the occasion to produce the threat of a causal relationship. [52] operators of manufacturing and use these occasions particularly dangerous to consumers, operators should mean the formation of consumers to take higher responsibilities Moreover the operator has control means that the ability of dangerous defects. In addition, the operator is the biggest beneficiary of the transaction, the risk of conduct assigned to the profiteers have their legitimacy. operators in the nature of the act take responsibility.
Withdrawal of the right to the consumer, the operator has the right to withdraw this obligation, hence may not produce the existence of a contract of trust.
For these reasons, the withdrawal of any given consumers the right to have their legitimate reasons, and not jeopardize the interests of the trust managers and even the stability of the law. China <<Consumer Protection Law "> should be set in the amendment to withdraw the operator informed rights obligations, should be considered in the interests of the operators to measure adherence to contract the interests of the trust.
(C legal effect on the balance of interests
Is withdrawn in the case of consumer contracts, for the balance of interests between the parties, the German legislators decided to withdraw the right of consumers to apply the legal effect of the right of cancellation. In other words, expression or the contract was withdrawn, the contractual relationship into clearing relationship (Ab-wicklungsverhaeltnis. principle, the parties returned payment from each other, in such circumstances can not be returned, the value of compensation may, in certain circumstances, the termination right of the value of compensation be released from their obligation to use the benefits and costs are usually have to be returned.
Different conditions because of the benefits, the right to withdraw the legal effect of consumers there are a lot different from the right to terminate the legal effect of the Department, the consumer is only liable under the obligation to return, in principle, the cost borne by the operators. Consumers to exercise the right of withdrawal obtained from the operator to return the objects, damaged goods by the operator assumes the risk of loss.
There is also that with the right to terminate the legal effect different from that of consumers and reasonable loss of value resulting from use of, shall be liable, but the operators are required when signing the contract in writing to the effect of the law, but also to express to avoid the possibility of reduction in value. there is an exception to this rule, that is because if the value of the reduction caused to examine the goods, the consumer is liable for compensation.
The right to terminate the case, the right people for the casual or fulfilled the duty of care is still often damage resulting value does not assume liability for loss, the rule does not apply to the withdrawal rights situation. The reason is that the right of withdrawal is not an objective violation of Entrepreneur obligation constitutes a premise, but the consumer was told to enjoy the right to withdraw the case, there is no reason to trust that it can ultimately keep the subject matter. [53] If the operator did not inform the right of withdrawal according to the law, consumers only in respect of intentional or grossly liable for damages in negligence.
Third, for the right to withdraw the system of ownership
In Germany, consumers have the right system to withdraw outside the Civil Code, which appears in the special legislation. In China, there is <<Consumer Protection Law "> this basic law, the consumer should be in the right system to withdraw be stipulated in the Basic Law. But the experience of German law, which adopted a system of the ideas about the right to withdraw the special law on the uniform civil code being included in .2000, the German legislators to withdraw the right of the consumer into the civil law , the unified regulations in the "" German Civil Code>> Section 361a, by [54] and the abolition of <<Consumer Credit Act and Exchange Act >>,<< >>,<< sharing site to use residential Law "> and <<Distance Selling Act "> and other one-line method. In the January 1, 2002, after Germany and modernize the law of debt," "German Civil Code>> Section 361a shall be extended to 5, ie 355 to 359, respectively, provides for the right to constitute a prerequisite for the withdrawal, the effect and legal consequences. <"German Civil Code>> Section 312, Section 312a provides a home trading rules, the first following provisions of Article 312b of the remote sales contracts, Article 495, p. 499 , Article 503, Article 505 of the consumer credit contract, financing assistance and phased delivery contracts. [55] Although the specific type of application to withdraw the right to be different, but constitute a prerequisite for the withdrawal right, exercise and elimination of both is common, that is, the uniform application of <"German Civil Code>> Section 355 to the provisions of Article 359.
Why should consumers the right to withdraw this particular law included in the Civil Code it? The main reason is clear general relationship between law and special law. If the civil law system, independent of the special law, the law applicable, should be more consideration the application of the special law, without regard to the application of general law. Over time, the general rules of law will be as "dead letter", there is no use. same contract was subsequently sold, in the case of the contract is discharged, the legal effect of contract clearing relationships, and in the case of the right to withdraw, "<Consumer Protection Law"> without considering civil or general rules of contract law as otherwise provided, the same treatment does not meet the same conditions of the general requirements of justice. Consumers withdraw the right system for all consumer-party contracts, which account for almost half of the contractual relationship, the growing field of application, and the general law, but the limited scope of application, what is special, what is general and easy Health objection. Therefore, the right to withdraw the classified Civil Code of the consumer to have to clarify its position in the civil law system.
(A force mode
Arguably, the withdrawal period, the consumer and the legal relations between the operators on how the contract is to be determined valid or invalid to be determined? The withdrawal period, the parties are entitled to claim performance of the contract?
IV, Conclusion
消费者撤回权之规范目的在于救济消费者意思形成之障碍,在其于精神上或信息上处于弱势的情况下,给予消费者一定期间予以思考,由其决定撤回意思表示还是使意思表示产生效力.
撤回期间制度为消费者撤回权制度中的核心内容,其应当以经营者告知撤回权、收到货物或者获取信息等时点开始起算,起算点之确定应以其能够真实形成意思为准.
消费者撤回权不同于消费者退回权,后者较有利于经营者,不仅告知义务有所减弱,而且消费者存在先履行之义务,故仅在特定领域中存有特别理由情况下方才应予允许,还是应以消费者撤回权为一般之原则.
在消费者撤回权的构成前提上,作为撤回权人的消费者并不需要给出撤回之理由甚或证明其撤回之理由,既不需要有对意思决定的真实妨碍,也不需要考虑撤回动机,其实质为任意之撤回权.在利益衡量上,消费者解销契约的自由与经营者信赖契约严守的利益相冲突.要否认相对人的信赖利益,除了须具备意思表示瑕疵之前提外,尚需要有可归责于相对人的事由,于上门交易或远程销售情况下,可归责事由来自于经营者的行为,其为行为责任,并不根据过错归责.由于经营者负有告知撤回权以及信息提供之义务,其并无信赖契约将来有约束力之根据,故赋予消费者撤回权有其合理根据.
消费者撤回权的效力有两种模式,一种是无效模式,一种是有效模式.无效模式下的意思表示处于待定无效状态,有效模式下的意思表示处于待定有效状态.在前者,推断之沉默具有确认待定无效意思表示有效的功能,而撤回权具有阻碍意思表示有效的功能,在后者,撤回权可以归入可撤销之类型,一旦行使撤回权,意思表示即为确定无效.
Notes:
[1]参见迟颖:<<论德国法上以保护消费者为目的之撤回权>>,<<政治与法律>>2008年第6期,周显志、陈小龙:<<试论消费信用合同"冷却期"制度>>,<<法商研究>>2002年第5期,严欢欢:<<冷却期制度研究>>,<<河南高等专科学校学报>>2007年第4期.
[2]参见张学哲:<<消费者撤回权制度与合同自由原则—以中国民法法典化为背景>>,<<比较法研究>>2009年第6期.
[3]Vgl. HKK zum BGB／Schmoeckel, § § 312 if.,Rn.75; Medicus/Lorenz, SchuldrechtI, AllgemeinerTeil,18.Auflage,2008, S.282, Rn.585.
[4]<<上海市消费者权益保护条例>>第28条规定:"经营者以上门方式推销商品的,应当征得被访问消费者的同意.上门推销时,推销人员应当出示表明经营者授权上门推销的文件和推销人员的身份证件,并以书面方式向消费者告知推销商品的性能、特性、型号、价格、售后服务和经营地址等内容.经营者上门推销的商品,消费者可以在买受商品之日起7日内退回商品,不需要说明理由,但商品的保质期短于7日的除外.商品不污不损的,退回商品时消费者不承担任何费用."
[5]Vgl． G. Reiner, Der vebraucherschtltzende Widemif im Recht der Willenserkdanmg, AcP 2003, S.4.
[6]Vgl． Wolf/Iarenz, Allgemeiner Teil des BGB, 2004,§39, Rn.20, S.718.
[7]Vgl. Heck, Wie ist den Mi(3brauchen, welche sich bei den Abzahlungsgeschliften herausgestellt haben, entgegenzuwirken 131, 180f.,192.
[8]同上注,第148页.
[9]Vgl. Gesetz tlber den Vertrieb auslandischer Investmentanteile und fiber die Besteuenmg der Ertrgge aus auslandischen Investmentan-teilen v. 28. 7. 1969. BGB1 1986.
[10]Vgl. Lorenz, Der Schutz vor dem unerwtlnschten Vertrag, 1997, 5.123.
[11]Vgl． Gesetz fiber den Widerruf von Haustargeschaften mid hnlichen Geschliften v. 16.1.1986, BGBI 1122.
[12]Vgl． Staudinger/Kaiser, BGB, Neubearbeitung 2004,§355, Rn.6; Wolf/Larenz, Allgemeiner Teil des BGB, 2004, § 39, Rn.11, S.715.
[13]Vgl. H. Eidenm(Mer, Die Rechtfertigung、Widernifsrechten, AcP 210, S.68.
[14]Vgl.Gesetz betreflend die Abzahlungsgeschaftev.16. 5.1894, geandert durch Gesetz v. 15.5.1974, BGB1 I 1669.
[15]Vgl． Verbraucherkreditgesetz v. 17.12.1990, BGBI 2840.
[16]Wolf/Larenz, ABgemeiner Teil des BGB, 2004,§39, Rn.18, S.717.
[17]Vgl． Gesetz zum Schutz der Teilnehmer am Femunterricht v. 24.8.1976, BGB1 12525.
[18]Vgl. Gesetz Ober den Versichemngsvertrag v. 30.5.1908, getndert durch Gesetz zur Andening versichemngsrechtlicher Vorschriftenv. 17.12.1990, BGB12864.
[19]Vgl. Gesetz fiber die Verauβerung． Teilzeitnutzungsrechten an Wohngebauden v. 20.12.1996, BGBI 12154.
[20]Vgl. Femabsatzgesetz v. 27.6.2000, BGB1 I897.
[21]Vgl． Staudinger/Kaiser, BGB,Neubeatbeitung 2004, § 355, Rn.7;同前注[3], Medicus、 Lorenz书,第285页,边码592.
[22]Vgl． Wolf/Larenz, Allgemeiner Teil des BGB, 2004,§39, Rn.18, S.717.
[23]同前注[13], H. Eidenmaller文,第68页.
[24]同前注[5], G. Reiner文,第9页.
[25]同前注[13], H. Eidenmttller文,第71页.
[26]Vgl. Medicus, Verschulden bei Vertragsverhandlungen, in Gutachten und Vorschlage zur Uberarheitung des Schuldrechts, Band I,2000, S.519 ff．
[27]上门与刚成年的、无收入、无财产的高中生签订"嫁妆置办合同",价款12000马克,该合同被法院认定违背善良风俗(BGH NJW 1982, 1457),诱导精神、身体残疾老人仓促决定签订超出其履行能力并无需要的房屋粉刷合同,价值14000马克,该合同也被宣布违背善良风俗(OLG Frankfurt NJW-RR 1988, 501.
[28]Vgl. LG Oldenburg MDR 1969, 392; AG Nttrtingen NJW-RR 1996, 392.
[29]Vgl. Begr. BR-Entwurf, BT-Drucks.7/4078, S.8.
[30]同前注[5], G. Reiner文,第10页.
[31]Vgl. BGH NJW 2007, 1946,同前注[3], Medicus/Lorenz书,第288页,边码600.
[32]同前注[3], Medicus/Lorenz书,第288页,边码599.
[33]Vgl. EuGH NJW 2002, 281, in Brox/Walker, Allgemeines Schuldrecht, 34. Aufl.,S.192.
[34]针对信息不对称的情况,德国法规定了经营者的信息提供义务.经营者对于合同标的的重要细节要提供信息,如果经营者没有提供相关信息给消费者,或者导致消费者意思表示无效,或者导致撤回期间不起算.
[35]同前注[5], G. Reiner文,第10页.
[36]Vgl. Brox/Walker, ABgemeines Schuldrecht, 34. Aufl.,S.192.
[37]Vgl. Staudinger/Kaiser, BGB, Neubearbeitung 2004, § 356, Rn.2.
[38]Vgl． Staudinger/Kaiser, BGB, Neubearbeitung 2004,§355, Rn.3.
[39]同前注[3], Medicus/Lorenz书,第288页,边码598.
[40]Vgl. HKK zum BGB/Duve,§§1-14, Rn.78.
[41]Vgl． Staudinger/Kaiser, BGB, Neubearbeitung 2004,§355, Rn.5,同前注[36], Brox、 Walker书,第189页.
[42]同前注[36], Brox/Walker书,第181页.
[43]同前注[3], Medicua/Lovenz书,第283页,边码586.
[44]同上注,第283页,边码587.
[45]同前注[3], Medicus/Lorew书,第283页,边码592.
[46]同前注[36], Brox/Walker书,第186页.
[47]同前注[10], Lorenz书,第29页.
[48]Vg1. Flume, Allgemeiner Teil des BGB, 3. Auflage, 1979, II, S. 49.
[49]Vgl. Stathopoulos, Probleme der Vertragsbindung und Vertragsltsung in rechtsvergleichender Betrachtung, AcP 194, S.543, 552.
[50]同前注[10], Lorenz书,第28页以下.
[51]同上注,第38页.
[52]同上注,第164页.
[53]同前注[3], Medicus/Lorenz书,第290页,边码604.
[54]Vgl. Gesetz ttber Femabsatzvertrage und andere Fragen des Verbraucherrechts sowie zur Umstellung． Vorschriften aus Eum am 30.6. 2000, BGBI I897.
[55]<<德国民法典>>的一般性规定可以适用于远程授课之情形,但不能适用于<<外国投资份额销售法>>、<<投资公司法>>以及<<保险合同法>>规定之情形.
[56]同前注[5], G. Reiner文,第4页以下.
[57]Vgl. B. Boemke, Das Wiedemifarecht in allgeniinen Verbraucherschutzrecht, AcP 2003,S.165; Certa, Widemrf und Schwebende Umwirksamkeit, 2000, 33.
[58]同上注,B. Boemke文,第166页.
[59]同前注[5], G. Reiner文,第15页.
[60]同上注,第19页.
[61]同上注,第20页.
[62]同上注,第21页.对于无效行为确认的理论,参见[德]迪特尔·梅迪库斯:<<德国民法总论>>,邵建东译,法律出版社2000年版,第404页以下.
[63]同上注,迪特尔·梅迪库斯书,第405页.
[64]此即Kipp的法律上双重效果说,参见前注[57],B.Boemke文,第178页.
[65]同前注[5], G. Reiner文,第27页.
[66]同上注,第28页.
[67]同上注,第30页;Gernhuber, WM 1998,1797,1804.
[68]对于无效行为确认的理论,参见前注[62],迪特尔·梅迪库斯书,第407页
[69]同前注[5], G. Reiner文,第36页.
[70]Vgl. HKK zum BGB, § 355, Rn.46.
[71]参见金福海:<<消费者法论>>,北京大学出版社2005年版,第169页.
[72]Vgl. Staudinger/Kaiser, BGB, Neubearbeitung 2004, § 355, Rn.18.
[73]Vgl. Mankowski, WM 2001, 793, 794.
[74]同前注[10], Lorenz书,第129页.
[75]同前注[5], G.Reiner文,第33页.
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