分期付款买卖合同中买受人利益保护问题研究
发布时间：2018-11-14 18:45
【摘要】：分期付款买卖合同是随着时代发展而细分出的一种特殊买卖合同。如今,随着经济的快速发展和人们消费需求的提高,尤其是近些年网络购物的迅猛发展,人们的消费观念开始有所转变。人们开始愿意以分期支付作为交易的付款方式,特别是年轻一代。而随着各大网商陆续推出各种分期付款的支付平台,如京东商城的京东白条、淘宝的蚂蚁花呗和天猫商城的天猫分期等,无疑使分期付款买卖的火热程度达到了一个新的高峰,同时也带来了一些挑战。在纷繁复杂的经济交易中,买受人往往处于弱势地位,容易被侵害到利益而难以维权,因此需要法律出台相关规定对买受人进行保护。然而,我国法律对分期付款买卖合同的规定本就很少,其中关于保护买受人利益的条款就更少了,而且还存在着很多不足,亟待完善。如何保护分期付款买卖合同中买受人的利益,降低交易风险,从而促进交易的完成、经济的发展,已成为司法实践中的重要课题。本文正文分为四个部分,从整体到局部、宏观到微观的角度详细地阐述了分期付款买卖合同的相关概念和关于买受人利益保护的条款,通过对比分析其他国家和地区相关联的法律规定以及学界上的有关学说,尝试分析分期付款买卖合同中关于买受人利益保护问题的不足之处,并依据分析出的问题提出针对性的建议,期待更好地完善相关立法。本文第一部分主要是从宏观的角度介绍了分期付款买卖合同的整体概况,分为分期付款买卖合同的概念、特征和优势,以及其在国内外的发展渊源和立法现状三部分内容。目的是为后面条款和制度的分析进行理论铺垫和背景介绍。本文第二部分主要讨论了买受人的诸项权利。具体分析了买受人的期待权、处分权和其他项权利的性质、效力以及从保护买受人利益的角度如何进行完善。本文第三部分通过列举案例等方式具体讨论了出卖人的处分权对买受人利益的影响。从一物数卖、取回权的行使和设定担保物权这三个大的方面,详细讨论了出卖人的这些处分行为会产生什么样的效力,法律上应如何认定以及如何对侵犯买受人利益的行为进行规避。本文第四部分以保护买受人的利益为出发点,对分期付款买卖制度构建的问题及措施进行了重点分析。通过世界其他国家的立法和学者学说对所有权保留和期限利益制度进行探讨。然后在前文的基础理论研究上,结合实践生活中的具体情况对问题进行论证分析,并提出自己浅薄的建议。
[Abstract]:The installment sale contract is a kind of special sale contract which is subdivided with the development of the times. Nowadays, with the rapid development of economy and the improvement of people's consumption demand, especially the rapid development of online shopping in recent years, people's consumption concept has begun to change. People began to pay in installments, especially for the younger generation. And as the major Internet merchants have successively launched various payment platforms for installment payments, such as JingDong's white slips in JingDong Mall, Taobao's Ant Flower and Tmall's phases, etc., there is no doubt that installment payment sales have reached a new peak. There are also challenges. In the complicated economic transactions, the buyer is often in a weak position, easy to be infringed on the interests and difficult to protect the rights, so the relevant laws need to be issued to protect the buyer. However, there are few provisions on installment purchase and sale contract in our country, among which the provisions on protecting the interests of the buyer are even less, and there are still many deficiencies, which need to be improved urgently. How to protect the interests of buyers in the installment sale contract, reduce the transaction risk, thus promote the completion of the transaction, economic development, has become an important subject in judicial practice. This text is divided into four parts, from the whole to the local, macroscopic to microscopic angle, elaborated the related concept of the installment purchase and sale contract and the clause about the buyer's interest protection in detail, By comparing and analyzing the relevant laws and regulations of other countries and regions and relevant theories in academic circles, this paper tries to analyze the deficiency of the protection of buyer's interests in the installment sale contract. And according to the analysis of the problems put forward targeted recommendations, looking forward to better improve the relevant legislation. The first part of this paper mainly introduces the general situation of the installment sale contract from the macroscopic angle, and divides into three parts: the concept, the characteristic and the superiority of the installment sale contract, as well as the development origin and the legislation present situation of the installment sale contract at home and abroad. The purpose is to provide theoretical basis and background for the analysis of the latter clause and system. The second part of this paper mainly discusses the buyer's rights. This paper analyzes the nature and effectiveness of the buyer's right of expectation, disposition and other rights, and how to perfect it from the angle of protecting the buyer's interests. The third part discusses the influence of seller's right of disposition on buyer's interests by enumerating cases. From the three major aspects of the sale of one thing, the exercise of the right to take back and the creation of the security interest, the author discusses in detail what kind of effect the seller's disposition will have. How the law should be recognized and how to circumvent the violation of the interests of the buyer. In the fourth part, the author analyzes the problems and measures of the installment purchase and sale system based on the protection of buyer's interests. This paper probes into the system of retention of title and term interest through legislation and scholars' theories in other countries of the world. Then in the previous basic theory research, combined with the practical life of the specific situation to demonstrate and analyze the problem, and put forward their own shallow suggestions.
【学位授予单位】：北京交通大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6
[Abstract]:The installment sale contract is a kind of special sale contract which is subdivided with the development of the times. Nowadays, with the rapid development of economy and the improvement of people's consumption demand, especially the rapid development of online shopping in recent years, people's consumption concept has begun to change. People began to pay in installments, especially for the younger generation. And as the major Internet merchants have successively launched various payment platforms for installment payments, such as JingDong's white slips in JingDong Mall, Taobao's Ant Flower and Tmall's phases, etc., there is no doubt that installment payment sales have reached a new peak. There are also challenges. In the complicated economic transactions, the buyer is often in a weak position, easy to be infringed on the interests and difficult to protect the rights, so the relevant laws need to be issued to protect the buyer. However, there are few provisions on installment purchase and sale contract in our country, among which the provisions on protecting the interests of the buyer are even less, and there are still many deficiencies, which need to be improved urgently. How to protect the interests of buyers in the installment sale contract, reduce the transaction risk, thus promote the completion of the transaction, economic development, has become an important subject in judicial practice. This text is divided into four parts, from the whole to the local, macroscopic to microscopic angle, elaborated the related concept of the installment purchase and sale contract and the clause about the buyer's interest protection in detail, By comparing and analyzing the relevant laws and regulations of other countries and regions and relevant theories in academic circles, this paper tries to analyze the deficiency of the protection of buyer's interests in the installment sale contract. And according to the analysis of the problems put forward targeted recommendations, looking forward to better improve the relevant legislation. The first part of this paper mainly introduces the general situation of the installment sale contract from the macroscopic angle, and divides into three parts: the concept, the characteristic and the superiority of the installment sale contract, as well as the development origin and the legislation present situation of the installment sale contract at home and abroad. The purpose is to provide theoretical basis and background for the analysis of the latter clause and system. The second part of this paper mainly discusses the buyer's rights. This paper analyzes the nature and effectiveness of the buyer's right of expectation, disposition and other rights, and how to perfect it from the angle of protecting the buyer's interests. The third part discusses the influence of seller's right of disposition on buyer's interests by enumerating cases. From the three major aspects of the sale of one thing, the exercise of the right to take back and the creation of the security interest, the author discusses in detail what kind of effect the seller's disposition will have. How the law should be recognized and how to circumvent the violation of the interests of the buyer. In the fourth part, the author analyzes the problems and measures of the installment purchase and sale system based on the protection of buyer's interests. This paper probes into the system of retention of title and term interest through legislation and scholars' theories in other countries of the world. Then in the previous basic theory research, combined with the practical life of the specific situation to demonstrate and analyze the problem, and put forward their own shallow suggestions.
【学位授予单位】：北京交通大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6
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