论我国关于涉外消费者合同法律适用之规定
发布时间：2018-09-01 11:25
【摘要】：自19世纪末,发端于英国的保护消费者权益运动很快风靡全球。美国相继成立保护消费者权益的民间社会组织和政府机构。随后,各国也纷纷开始就保护消费者进行立法。国际贸易和服务在社会进步,尤其是发达的交通条件和网络通讯技术的推动下发展迅猛。而由此形成的消费者合同因多方面的涉外性,可能在适用哪个法域或国家的法律方面有争议。不仅如此,此种涉外合同当事人各方所处的地位存在着明显的差异,即消费者与经营者相比,无论是经济实力、掌控的信息、救济能力等诸多方面均处于弱势地位,在意思自治产生准据法过程中同样如此。为此,诸多国家相继制定了旨在解决此种法律冲突的特殊的法律适用规则。而我国长期以来并未专门就涉外消费者合同制定特殊的法律适用规则,而是对其准用与一般涉外合同完全相同的法律规则。2010年通过的《中华人民共和国涉外民事关系法律适用法》(以下简称《法律适用法》)第42条特别针对该类合同规定特殊的冲突法规则,此举意义重大。该条款之规定,一方面仍然确立意思自治确定准据法具有优先适用性,另一方面,区别于通常适用合同双方当事人共同协议选择的法律,强调适用消费者单方选择适用的法律;在消费者未就该类合同确定准据法时,可以适用其经常居所地法律,这都体现了对消费者权益的特殊保护。然而,我国关于涉外消费者合同法律适用之规则,至少存在以下缺憾:没有对何谓消费者合同进行界定;没有对“相关经营活动”作出明确规定;也没有对适用消费者经常居所地法律作出适当的限制;未引入最密切联系原则。所有这些,势必为受案法院适用相关法律带来各种困扰。基于此,本人以“我国关于涉外消费者合同法律适用之规定”作为选题,基于涉外消费者合同的基本理论阐释,论述我国单独规定该合同之法律选择规则的缘由,结合国际社会关于该合同法律适用的立法与实践经验,阐释我国关于该合同法律适用之规定的基本特点和优点,剖析我国关于该合同法律适用之规定的主要缺憾,并就如何改进我国关于该合同之法律适用的规定展开必要的探讨,企盼能对我国相关立法规定的完善有所裨益。全文除引言和结语外,主要包括如下五个部分:第一部分,主要阐释涉外消费者合同法律适用的基本理论。所谓消费者合同,是指由消费者与经营者之间订立的以非商业或职业为目的而购买商品或者接受服务的协议。而所谓涉外消费者合同,是指消费者合同的主体、客体或者该合同的订立或履行等法律事实与外国或者外法域有关联的,并且能够引起法律适用冲突的协议。涉外消费者合同的法律适用,是指并不规定合同当事人各方具体的权利和义务关系,而仅仅规定此种合同应当适用哪个国家或者法域的法律。第二部分,阐述我国《法律适用法》另行规定涉外消费者合同的法律适用规则的缘由。涉外消费者合同在本质上仍属于涉外合同,我国为何将其独立于一般涉外合同之外,另行规定此种合同的冲突规范,主要基于如下理由:顺应近现代国际社会注重保护弱者权益的立法潮流;考虑涉外消费者合同的自身特点及发展需要;跟随当代国际社会国际私法相关立法的趋势;符合当代国际私法的宗旨发展的客观要求,即由关注判决的确定性和可预见性的形式正义,发展到重视获得结果公正的实体正义。第三部分,论述我国关于涉外消费者合同的法律适用之规定的基本特点。我国关于涉外消费者合同法律适用之规定,与世界上其他国家和地区的相关国际私法立法相比,具有如下基本特点:首先适用意思自治原则,即此种涉外合同首先适用消费者以自己的单方意思表示选择适用的法律,同时对消费者单方意思自治作出了较为严格的限制;其次适用对消费者有利的法律,即在消费者没有单方选择此种涉外合同准据法的情况下,可以适用其经常居所地法律。最后可以适用商品、服务提供地法律,条件是经营者未在消费者经常居所地从事相关经营活动。此种规定适度兼顾了消费者与经营者的合法权益。第四部分,剖析我国关于涉外消费者合同法律适用之规定的主要缺憾。尽管我国关于该合同的法律选择之规定具有上述诸多特点和亮点,但至少存在如下缺憾:没有对何谓涉外消费者合同进行阐释;没有对经营者从事的“相关经营活动”作出明确的界定;没有对适用消费者经常居所地法律作出更为适用的限制;完全排除最密切联系原则在此合同冲突法确定中的运用。第五部分,论述我国关于涉外消费者合同法律适用之规定的完善举措。首先,应当对何谓消费者合同进行明确的界定;其次,应当对何谓经营者“从事相关经营活动”作出合理的规定;再次,应当对适用消费者经常居所地法律作出更为适当的限制;最后,应当将最密切联系原则引入涉外消费者合同之中,以进一步增强此涉外合同之法律适用的灵活性和合理性。
[Abstract]:At the end of the 19th century, the movement to protect consumers'rights and interests, which originated in Britain, quickly became popular all over the world. The United States set up civil society organizations and government agencies to protect consumers' rights and interests. In addition, the position of the parties to the foreign-related contract is obviously different, that is, the consumers and the operators, regardless of their economic strength, control the letter. For this reason, many countries have formulated special rules for the application of law aimed at resolving this kind of legal conflict. However, China has not formulated special rules for the application of law on foreign-related consumer contracts for a long time. Article 42 of the Law of the People's Republic of China on the Application of Law in Civil Relations Concerning Foreign Affairs (hereinafter referred to as the Law on the Application of Law) passed in 2010 is of great significance in specifying special conflict-of-laws rules for such contracts. On the other hand, unlike the law generally applicable to the choice by mutual agreement between the parties to a contract, which emphasizes the application of the law applicable to consumers'unilateral choice, the law of their habitual residence can be applied when consumers have not determined the applicable law for such contracts, which embodies the special rights and interests of consumers. However, there are at least the following shortcomings in our country's rules on the application of foreign-related consumer contracts: there is no definition of consumer contracts; there is no clear provision on "related business activities"; there is no appropriate restriction on the application of the law of the habitual residence of consumers; there is no introduction of the principle of the closest link. On the basis of this, I take "the provisions on the legal application of foreign-related consumer contracts in China" as the selected topic, based on the interpretation of the basic theory of foreign-related consumer contracts, discuss the reasons why China has separately stipulated the rules of choice of law for the contract, and combine with the international community on the contract. With the legislative and practical experience of the application of law, this paper expounds the basic characteristics and advantages of the provisions on the application of law to this contract in China, analyzes the main shortcomings of the provisions on the application of law to this contract in China, and probes into how to improve the provisions on the application of law to this contract in China, hoping to provide the relevant legislative provisions in China. In addition to the introduction and conclusion, the full text mainly includes the following five parts: The first part mainly explains the basic theory of legal application of foreign-related consumer contracts. The so-called foreign-related consumer contract refers to an agreement in which the subject, object or legal facts such as the conclusion or performance of a consumer contract are related to foreign countries or foreign jurisdictions and can cause conflicts of application of law. The second part elaborates the reasons why the Law of Applicable Law of China stipulates the applicable rules of foreign-related consumer contracts separately. Foreign-related consumer contracts are still Foreign-related Contracts in essence, and why our country should make them separate from the general Foreign-related Contracts and regulate them separately. Conflict norms of such contracts are mainly based on the following reasons: conforming to the legislative trend of modern and contemporary international society which pays attention to the protection of the rights and interests of the weak; considering the characteristics and development needs of foreign-related consumer contracts; following the trend of relevant international private law legislation in contemporary international society; meeting the objective requirements of the development of contemporary private international law, namely The third part discusses the basic characteristics of the provisions on the application of law to foreign-related consumer contracts in China. The provisions on the application of law to foreign-related consumer contracts in China, as well as other countries and regions in the world, are also discussed. Compared with the legislation of private international law, it has the following basic characteristics: firstly, it applies the principle of autonomy of will, that is, this kind of foreign-related contract first applies to the law which consumers choose to apply by their own unilateral declaration of will, and at the same time, it makes a more stringent restriction on the unilateral autonomy of will of consumers; secondly, it applies the law which is beneficial to consumers, that is, the consumer has not In the case of unilaterally choosing the applicable law for such foreign-related contracts, the law of the place of habitual residence can be applied. Finally, the law of the commodity and the place of service provision can be applied, provided that the operator does not engage in relevant business activities in the place where the consumer habitually resides. This provision gives due consideration to the legitimate rights and interests of consumers and operators. The main shortcomings of China's provisions on the application of foreign-related consumer contracts are as follows: there is no explanation of what is a foreign-related consumer contract; there is no clear definition of the "relevant business activities" of the operators. In the fifth part, the author discusses the perfection measures of the provisions on the application of foreign-related consumer contract law in China. First, the definition of consumer contract should be clearly defined. Secondly, reasonable provisions should be made on what operators are "engaged in relevant business activities"; thirdly, more appropriate restrictions should be made on the application of the law of the habitual residence of consumers; finally, the principle of the closest possible connection should be introduced into the contract of foreign-related consumers in order to further enhance the flexibility and applicability of the law of this foreign-related contract. Rationality.
【学位授予单位】：华中师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6
本文编号：2217051
[Abstract]:At the end of the 19th century, the movement to protect consumers'rights and interests, which originated in Britain, quickly became popular all over the world. The United States set up civil society organizations and government agencies to protect consumers' rights and interests. In addition, the position of the parties to the foreign-related contract is obviously different, that is, the consumers and the operators, regardless of their economic strength, control the letter. For this reason, many countries have formulated special rules for the application of law aimed at resolving this kind of legal conflict. However, China has not formulated special rules for the application of law on foreign-related consumer contracts for a long time. Article 42 of the Law of the People's Republic of China on the Application of Law in Civil Relations Concerning Foreign Affairs (hereinafter referred to as the Law on the Application of Law) passed in 2010 is of great significance in specifying special conflict-of-laws rules for such contracts. On the other hand, unlike the law generally applicable to the choice by mutual agreement between the parties to a contract, which emphasizes the application of the law applicable to consumers'unilateral choice, the law of their habitual residence can be applied when consumers have not determined the applicable law for such contracts, which embodies the special rights and interests of consumers. However, there are at least the following shortcomings in our country's rules on the application of foreign-related consumer contracts: there is no definition of consumer contracts; there is no clear provision on "related business activities"; there is no appropriate restriction on the application of the law of the habitual residence of consumers; there is no introduction of the principle of the closest link. On the basis of this, I take "the provisions on the legal application of foreign-related consumer contracts in China" as the selected topic, based on the interpretation of the basic theory of foreign-related consumer contracts, discuss the reasons why China has separately stipulated the rules of choice of law for the contract, and combine with the international community on the contract. With the legislative and practical experience of the application of law, this paper expounds the basic characteristics and advantages of the provisions on the application of law to this contract in China, analyzes the main shortcomings of the provisions on the application of law to this contract in China, and probes into how to improve the provisions on the application of law to this contract in China, hoping to provide the relevant legislative provisions in China. In addition to the introduction and conclusion, the full text mainly includes the following five parts: The first part mainly explains the basic theory of legal application of foreign-related consumer contracts. The so-called foreign-related consumer contract refers to an agreement in which the subject, object or legal facts such as the conclusion or performance of a consumer contract are related to foreign countries or foreign jurisdictions and can cause conflicts of application of law. The second part elaborates the reasons why the Law of Applicable Law of China stipulates the applicable rules of foreign-related consumer contracts separately. Foreign-related consumer contracts are still Foreign-related Contracts in essence, and why our country should make them separate from the general Foreign-related Contracts and regulate them separately. Conflict norms of such contracts are mainly based on the following reasons: conforming to the legislative trend of modern and contemporary international society which pays attention to the protection of the rights and interests of the weak; considering the characteristics and development needs of foreign-related consumer contracts; following the trend of relevant international private law legislation in contemporary international society; meeting the objective requirements of the development of contemporary private international law, namely The third part discusses the basic characteristics of the provisions on the application of law to foreign-related consumer contracts in China. The provisions on the application of law to foreign-related consumer contracts in China, as well as other countries and regions in the world, are also discussed. Compared with the legislation of private international law, it has the following basic characteristics: firstly, it applies the principle of autonomy of will, that is, this kind of foreign-related contract first applies to the law which consumers choose to apply by their own unilateral declaration of will, and at the same time, it makes a more stringent restriction on the unilateral autonomy of will of consumers; secondly, it applies the law which is beneficial to consumers, that is, the consumer has not In the case of unilaterally choosing the applicable law for such foreign-related contracts, the law of the place of habitual residence can be applied. Finally, the law of the commodity and the place of service provision can be applied, provided that the operator does not engage in relevant business activities in the place where the consumer habitually resides. This provision gives due consideration to the legitimate rights and interests of consumers and operators. The main shortcomings of China's provisions on the application of foreign-related consumer contracts are as follows: there is no explanation of what is a foreign-related consumer contract; there is no clear definition of the "relevant business activities" of the operators. In the fifth part, the author discusses the perfection measures of the provisions on the application of foreign-related consumer contract law in China. First, the definition of consumer contract should be clearly defined. Secondly, reasonable provisions should be made on what operators are "engaged in relevant business activities"; thirdly, more appropriate restrictions should be made on the application of the law of the habitual residence of consumers; finally, the principle of the closest possible connection should be introduced into the contract of foreign-related consumers in order to further enhance the flexibility and applicability of the law of this foreign-related contract. Rationality.
【学位授予单位】：华中师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6
【引证文献】
相关期刊论文 前1条
1 阳诗园;;论我国涉外消费合同的法律适用[J];法制与社会;2018年07期
，本文编号：2217051
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