分时度假的法律规制研究

发布时间：2018-05-15 07:31

本文选题：分时度假 + 法律规制　；参考：《西南财经大学》2010年硕士论文

【摘要】：分时度假在美国等发达国家已经经过了40多年的发展历程。目前,分时度假进入我国近20年,并形成了一定的市场规模。但由于缺乏法律规制,在其发展过程中,出现了很多问题,侵犯消费者权益的事时有发生,给分时度假的发展造成了严重的负面影响。本文通过研究分时度假的基本理论以及分时度假在我国现存的问题,结合外国法律对分时度假的规制,最终从法律规制角度提出对分时度假的规制建议,以促进分时度假的健康发展。文章共分为四部分。第一部分是对分时度假的理论概述。首先说明分时度假的产生和发展过程,以及分时度假的概念。给读者以整体的印象,也为后面的详细论述奠定基础。接着探讨分时度假的分类,在结合旅游学界的一般分类和法学界的现存分类的基础上,着重介绍笔者对分时度假的分类。笔者认为现存分类有失偏颇,忽略了分时度假新形式——点数制俱乐部。所谓点数制是指顾客已不再是购买某处房产一段时间的所有权或使用权,而是购买分时度假经营者虚拟的一定的点数,并以所购买的点数再选择消费标价已折合成点数的住宿、交通等产品。所以,笔者在现存分类的基础上加上了点数制俱乐部。再次,讨论分时度假的法律关系。相较传统产品简单的“供需双方”而言,分时度假则要复杂得多,其涉及多方主体。包括,经营者(开发商或酒店、度假村的经营者)、销售代理商(旅行社或专业房地产销售公司)、购买者(或会员、投资者)、交换公司。除上述几个主要关系主体,分时度假还可能涉及再销售商、度假房产管理公司、信托公司、分时度假行业协会以及其他相关群体,如律师、金融机构、咨询顾问等直接或间接与分时度假产品有关的专业群体。笔者论述主要关系主体之间的法律关系,兼论述与分时度假相关的周边法律关系。第二部分是对分时度假现存问题的分析。首先,是三个分时度假的典型案例,在综合三则案例的基础上,认为厘清分时度假的现存问题并对其进行适当规制,而非仅靠消费者自己保护自己,对于保护消费者权益和分时度假的健康发展都是有益处的。其次,具体分析分时度假的现存问题。在宏观管理方面,分时度假作为横跨旅游和房地产两个行业的新兴行业,其究竟该由哪个行政部门管理一直是悬而未决的问题,这不利于对分时度假的管理。在微观方面,分时度假是一个系统工程,包含开发、销售、交换等过程。开发阶段的问题有经营者资质、经营者的非法集资行为。销售阶段,据统计,在我国的分时度假投诉案例中,95%以上的投诉者还没有真正使用过这种产品,甚至很多人没有得到完整的会员资格。也就是说,一种消费产品还没有被使用,就遭到了投诉,且投诉重点集中在销售环节上。销售阶段的问题也值得予以特别重视,具体言之,有欺诈性销售和强迫性销售、虚假宣传和承诺、格式合同、交易手续缺失这几个问题。分时度假交换是分时度假消费者购买分时度假产品的关键因素,所以交换阶段也是分时度假重要的阶段。我国分时度假的交换系统非常薄弱,交换公司、加盟酒店的能力都很有限,所以即便我国幅员辽阔、旅游资源丰富,也没能建立起足够强大的交换体系。加之依据我国目前的规定,公民自费出境旅游的目的地国家和地区只有28个,国际化交换机会也很有限。第三部分是分时度假法律规制比较法研究。首先,根据暨南大学汪传才教授的观点“分时度假立法总体上分为三种模式,第一是美国式,美国设有联邦层级的分时度假专门立法,各州自行立法,立法内容全程多方位,对分时度假三阶段作了全面的规制,各州都采单行法规；二是欧盟式,欧盟指令只是对分时度假购买者最低限度的保护规定,成员国转化时只能高于欧盟规定指令,转化低于指令的无效,对于立法内容,指令只规制分时度假发售阶段,且只涉及信息披露和冷静期的要求,而对于合同内容,销售与广告等没有涉及,内容很是单薄；三是澳洲、马来西亚式,分时经营者必须是股份公司,要按照证券法的规定进行信息披露等,条件很严格,立法者认为,经营者出售的是一种受管制的金融产品,购买人也把购买分时度假权益作为一种投资,因此,出售分时度假权益的行为受公司法、证券法的调整。”选取美国、欧盟、马来西亚为代表,介绍这三个国家或国际组织对分时度假的立法情况、法律规制现状。然后,对这三个国家或国际组织的立法、法律规制现状进行总结,得出以下经验：在宏观规制方面应在尽快制订分时度假专门法律法规的同时注重加强行业协会的自律。在微观制度方面,所有制度的设计都应以保护消费者权益为中心,且对信息披露制度和冷静期制度这两种每个国家都使用多年的制度也应进行规定。最后一个部分为我国分时度假法律规制建议。本部分在结合前两部分我国分时度假现存问题分析和分时度假比较法分析后,提出笔者对我国分时度假法律规制的建议。首先是对宏观规制的建议。主要为以下两点：其一,尽快制定分时度假的专门法律法规,并简要论述了分时度假专门法律法规的适用范围问题。其二,加强行业协会的自律。我国分时度假行业自律才刚刚起步,行业自律机制还有很多不完善的地方,现有的行业自律公约可操作性也不强。笔者认为可效仿欧洲的分时度假组织,设立专门的委员会并在其下设立行规委员会和法律委员会。且行业协会在进一步制订自律规范时,可将原则性规范更加细化。再次是对具体制度的建议,针对分时度假开发、销售、交换三个阶段存在的问题分别提出。在开发阶段,对经营者应有严格的市场准入、退出制度。在销售阶段,信息披露制度、广告资料的规制、有奖销售活动的规制、格式合同的规制以及冷静期制度,对这些措施的综合应用,将更有效地保护消费者的权益。在交换阶段,笔者认为对分时度假交换公司的市场准入和酒店加盟的标准这两方面进行规制,可辅助分时度假交换体系的完善。最后是配套制度研究,分时度假涉及法律关系复杂,仅靠一部专门法律法规是不够的。笔者论述了信托、保险、担保三种对分时度假起保障作用的制度,并比较其优劣,最后得出针对我国现状担保制度优于其它两种制度的结论。纵观全文,文章主要采用比较法的方法,结合我国分时度假的现状,系统地论述了对分时度假法律规制的建议,该部分也系本文之重点。当然,在撰写论文过程中,笔者在收集资料方面尚有欠缺,此论文的逻辑结构以及个人提出的合理化建议还望各位指正,以进一步研究、完善我国分时度假的法律规制。
[Abstract]:Timeshare has been developed for more than 40 years in developed countries such as the United States and other developed countries. At present, timeshare has entered China for nearly 20 years, and has formed a certain market scale. However, due to the lack of legal regulation, many problems arise in the process of its development, the occurrence of violations of the rights and interests of consumers and the severe development of timeshare have been caused. Through the study of the basic theory of timeshare and the existing problems of timeshare in China, this paper combines the regulations of foreign law on timeshare, and finally puts forward some suggestions on the regulation of timeshare from the angle of legal regulation, so as to promote the healthy development of timeshare.
The article is divided into four parts.
The first part is an overview of the theory of timeshare. First, it illustrates the emergence and development of timeshare, and the concept of timeshare. It gives the reader an overall impression, and lays the foundation for the detailed discussion behind it. Then it discusses the classification of timeshare, in combination with the general classification of the tourism community and the basis of the existing classification of the law community. The author mainly introduces the classification of timeshare. The author thinks that the existing classification is biased and ignores the new form of timeshare - point number club. The so-called point number system means that the customer is no longer the ownership or use right of a certain period of purchase, but a certain number of points for the purchase of the timeshare operator. The number of points purchased will be selected for the accommodation, transportation, and so on. Therefore, the author adds a point number club on the basis of the existing classification. Again, the legal relationship of timeshare is discussed. Compared with the simple "supply and demand" of the traditional products, the timeshare is much more complicated and involves many parties. Including, operators (developers or hotels, resort operators), sales agents (travel agencies or professional real estate sales companies), buyers (or members, investors), exchange companies. In addition to the above main relationships, timeshare may also involve resellers, holiday property management companies, trust companies, and timeshare industry associations And other related groups, such as lawyers, financial institutions, consultants and other professional groups directly or indirectly related to timeshare products. The author discusses the legal relations among the main subjects, and discusses the legal relations related to timeshare.
The second part is the analysis of the existing problems of timeshare. First, it is a typical case of three timeshare. On the basis of the comprehensive three cases, it is considered to clarify the existing problems of timeshare and to regulate it properly, instead of protecting themselves only by consumers themselves, for the protection of the rights and interests of consumers and the healthy development of timeshare. It is beneficial. Secondly, it analyzes the existing problems of timeshare. In macro management, the timeshare is an emerging industry across the two industries of tourism and real estate. Which administrative department has always been a pending question, which is not conducive to the management of timeshare. On the microcosmic aspect, the timeshare is one. System engineering, including development, sales, exchange and other processes. The problems in the development stage include the qualification of the operators, the illegal fund-raising behavior of the operators. The sales phase, according to the statistics, in the case of the time sharing complaint in China, more than 95% of the complainants have not really used the product, and even many people have not received the complete membership. That is, It says that a consumer product has not been used and has been complains, and the focus of the complaint is focused on the sales link. The problem of the sales phase is also worth paying special attention to. In particular, there are fraudulent and forced sales, false propaganda and commitment, formatting contracts, and lack of formalities. The timeshare exchange is the time of time. The key factor of the fake consumer purchase of the timeshare is the exchange stage is also an important stage of the timeshare. The exchange system of the timeshare is very weak in our country. The exchange company and the ability to join the hotel are very limited. So even if our country is vast and the tourist resources are rich and rich, we can not establish a strong exchange system. According to our current regulations, there are only 28 countries and regions where citizens travel abroad at their own expense, and international exchanges are also limited.
The third part is the study of the legal regulation comparative law of timeshare. First, according to Professor Wang Chuancai of Jinan University, the legislation of timeshare is divided into three modes, the first is the American style, the United States has a federal level special legislation of timeshare, the state legislation, the whole course of the legislation, and the three stages of the time holiday. A comprehensive regulation, each state takes a single line of regulations; two is the European Union, the EU directive is only the minimum protection of the time holiday buyer, the transformation of member countries can only be higher than the EU directive, the conversion is lower than the ineffectiveness of the directive. The requirements of the static period, and the content of the contract, sales and advertising are not involved, and the content is very thin; three is Australia, Malaysia style, the time division operator must be a joint-stock company, according to the provisions of the securities law, the information disclosure and so on, the conditions are very strict, the legislator thinks that the operator sells a controlled financial product, the purchaser. It also takes the purchase of timeshare as an investment, so the act of selling timeshare is subject to the company law and the adjustment of the securities law. "Select the United States, the European Union and Malaysia as the representative, introduce the legislation of the three countries or international organizations on the timeshare and the status of the legal regulation. Then, the establishment of the three countries or international organizations. The law, the present situation of legal regulation is summarized, and the following experience is drawn: in the macro regulation, the special laws and regulations of timeshare should be formulated as soon as possible and the self-discipline of the industry associations should be strengthened. In the micro system, the design of all systems should be centered on the protection of the rights and interests of consumers, and the system of information disclosure and the period of calm period should be two Systems that have been used for many years in every country should also be stipulated.
The last part is the legal rules and regulations of timeshare in China. In this part, after combining the analysis of the existing problems of timeshare and the comparison of time sharing in the first two parts of our country, the author puts forward some suggestions on the legal regulation of timeshare in China. The first is the suggestions on macro regulation. The first is the following two points: first, make the time division degree. Special laws and regulations, and briefly discuss the scope of application of special laws and regulations for timeshare. Secondly, strengthen the self-discipline of the industry association. The self-discipline of the timeshare industry in China has just started, and there are many imperfect areas for the self-discipline mechanism of the industry, and the operational autonomy of the existing industrial self-discipline conventions is not strong. The author thinks that we can imitate Europe. The timeshare organization of Chau, set up a special committee and set up the regulation committee and the Legal Committee under it. And the industry association can make the principle norm more detailed in the further development of the self-discipline standard. Again, the proposal of the specific system is put forward in the three stages of the development, sale and exchange of the timeshare, sale and sale. In the development stage, the operators should have strict market access and exit the system. In the sales stage, the information disclosure system, the regulation of the advertising material, the regulation of the sales activities, the regulation of the format contract and the calm period system, the comprehensive application of these measures will protect the rights and interests of the consumers more effectively. In the exchange stage, the author thinks the point of view is to be divided. The two aspects of the holiday exchange company's market access and the standard of hotel joining can assist in the improvement of the timeshare exchange system. In the end, it is the supporting system research, the timeshare involves the complex legal relationship, and only one special law and regulation is not enough. The author expounds the three kinds of time vacation insurance of trust, insurance and guarantee. Finally, we draw a conclusion that the guarantee system in China is superior to the other two systems.
Through the full text, the article mainly adopts the method of comparative law and combines with the present situation of timeshare in China, systematically discusses the suggestions on the legal regulation of time sharing holiday, which is also the focus of this article. Of course, in the process of writing the paper, the author is still lacking in the collection of data, the logical structure of this paper and the rationalization of the individual proposed. We also hope that you can correct the mistakes in order to further study and perfect the legal regulation of timesharing in China.

【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D923

【参考文献】