预付式服务合同中消费者任意解除权研究
发布时间：2018-09-17 10:23
【摘要】：预付式服务合同双方当事人地位悬殊,消费者的合法权益得不到充分保障,而学者主张的严格监控合同履行等方法过度放大了公权力、提高了执法成本,同时对保护消费者合法权益的效果也十分有限。赋予消费者任意解除权对保护消费者合法权益、提高经济效益、实现合同自由等具有不可替代的作用,而且完全符合公平正义、社会秩序、诚实信用等基本原则的要求,因此,我国法律应当赋予预付式服务合同中消费者任意解除权。在预付式服务合同存续期间,自然人的消费者享有任意解除权。具有完全行为能力的消费者可以采用明示或暗示、书面或口头等多种方式随时解除完整、有效的预付式服务合同,无行为能力或限制行为能力的消费者由其法定代理人代为行使任意解除权。除不可归责于消费者外,消费者应当赔偿经营者因合同解除造成的损害。由于经营者的损害、节省的成本和从他处获得的利益都难以确定和计算,损害赔偿金应当按照未消费余额的一定比例计算。消费者不愿行使任意解除权的,可以在合同成立时或履行中通过单方面通知经营者或与经营者约定等方式抛弃全部或部分任意解除权,但约定于预付式服务合同中的,不得采用格式条款的形式,否则该条款无效。
[Abstract]:The status of both parties in prepaid service contracts is very different, and the legitimate rights and interests of consumers can not be fully protected. However, the methods advocated by scholars, such as strict monitoring of contract performance, have excessively enlarged the public power, raised the cost of law enforcement, and have very limited effect on protecting consumers'legitimate rights and interests. The legal rights and interests of the prepaid service contract, the improvement of economic benefits, the realization of freedom of contract and other irreplaceable role, and fully in line with the requirements of fairness and justice, social order, good faith and other basic principles, therefore, China's law should give prepaid service contract consumers the right to rescind arbitrarily. Consumers with full capacity may terminate a complete and effective prepaid service contract at any time by express or implied, written or oral means, and consumers with no capacity or limited capacity for action shall exercise the right of arbitrary termination on their behalf by their legal representatives. The consumer shall compensate the operator for the damage caused by the termination of the contract. Because of the operator's damage, it is difficult to determine and calculate the cost savings and the benefits obtained from other places. The damages shall be calculated in accordance with a certain proportion of the unexpended balance. If the consumer is unwilling to exercise the right of arbitrary termination, he may pass the contract upon its formation or performance. If the right of rescission is discarded in whole or in part by unilateral notification to the operator or by agreement with the operator, it shall not be in the form of a standard clause in the prepaid service contract, otherwise the clause is invalid.
【学位授予单位】：广东财经大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.8
本文编号：2245551
[Abstract]:The status of both parties in prepaid service contracts is very different, and the legitimate rights and interests of consumers can not be fully protected. However, the methods advocated by scholars, such as strict monitoring of contract performance, have excessively enlarged the public power, raised the cost of law enforcement, and have very limited effect on protecting consumers'legitimate rights and interests. The legal rights and interests of the prepaid service contract, the improvement of economic benefits, the realization of freedom of contract and other irreplaceable role, and fully in line with the requirements of fairness and justice, social order, good faith and other basic principles, therefore, China's law should give prepaid service contract consumers the right to rescind arbitrarily. Consumers with full capacity may terminate a complete and effective prepaid service contract at any time by express or implied, written or oral means, and consumers with no capacity or limited capacity for action shall exercise the right of arbitrary termination on their behalf by their legal representatives. The consumer shall compensate the operator for the damage caused by the termination of the contract. Because of the operator's damage, it is difficult to determine and calculate the cost savings and the benefits obtained from other places. The damages shall be calculated in accordance with a certain proportion of the unexpended balance. If the consumer is unwilling to exercise the right of arbitrary termination, he may pass the contract upon its formation or performance. If the right of rescission is discarded in whole or in part by unilateral notification to the operator or by agreement with the operator, it shall not be in the form of a standard clause in the prepaid service contract, otherwise the clause is invalid.
【学位授予单位】：广东财经大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.8
【参考文献】
相关期刊论文 前1条
1 张春普;申建东;;非预付式非准入性会员卡性质探究[J];法律适用;2012年09期
，本文编号：2245551
本文链接：https://www.wllwen.com/falvlunwen/minfalunwen/2245551.html
