“購物返券”促銷中的民事法律問題研究
發(fā)布時間：2018-09-11 14:58
【摘要】：“購物返券”促銷作為一種新型的促銷方式,在國內(nèi)各大中型城市的零售業(yè)的發(fā)展歷史并不是很長,尚不是一種成熟的促銷方式。由于其具有價格幻覺效應、返券漏出效果以及補缺購買效果,使得“購物返券”這一促銷方式被眾多經(jīng)營者所親賴。然而,“購物返券”促銷的出現(xiàn)和盛行,亦暴露出許多問題,經(jīng)營者為了更好地利用“購物返券”促銷模式進行營利,設定了許多特殊的“游戲規(guī)則”,諸如對“券”的使用設定諸多的限制性條件來限制消費者的公平交易權(quán)和自由選擇權(quán)等合法權(quán)益,通過不明確促銷活動范圍、名為降價實為漲價、超額返券等具有欺騙、誘導性的行為侵犯消費者的知情權(quán)、意思自由等等。然而消費者卻懵然不知,誤以為自己占到便宜而沾沾自喜,甚至讓消費者產(chǎn)生不返券則不購物的理念,認為只有返券才能買到物美價廉的商品,誰的返券額度高誰的商品就好。原本以質(zhì)量為銷售導向的市場秩序遭到破壞,大量違背誠實信用原則、公平原則、等價有償原則等合同法基本原則的違法行為大量存在。因此,從民法角度對購物返券促銷進行全面分析,讓消費者清晰的認識到購物返券促銷以及促銷過程中出現(xiàn)的諸多的違法行為的實質(zhì)很有必要。 本文共分為五個部分。第一部分首先對“購物返券”的基本涵義進行解析；然后通過與其他相似的促銷種類進行區(qū)分,避免理解上的含混；最后對“購物返券”這一促銷所特有的效果進行闡述,以方便下文對“購物返券”促銷作更加深入的研究。 第二部分通過對目前學界已有的關(guān)于“購物返券”促銷性質(zhì)的學術(shù)觀點進行闡述與評析,從而得出結(jié)論：“購物返券”促銷微觀層面上在經(jīng)營者與消費者之間形成買賣合同關(guān)系,返券是買賣合同中的價格條款,“券”是一種權(quán)利憑證；在宏觀層面上,“購物返券”促銷不屬于附贈式有獎銷售,而只是一種普通的促銷方式。 第三部分首先對“購物返券”促銷合同中常見的限制性條款進行總結(jié),并認定為格式條款,然后從合同訂立時以及合同訂立后兩個方面對這些限制性條款進行法律效力上的分析。 第四部分揭示了在“購物返券”促銷中常見的誘導性行為,從根本上進行剖析得出其民事欺詐行為的實質(zhì),并對其引起的法律后果從《合同法》與《侵權(quán)責任法》兩個方面進行全面分析。 第五部分主要是針對“購物返券”促銷的調(diào)整從宏觀與微觀兩個方面提出自己的立法建議。
[Abstract]:As a new type of promotion, the history of retail sales in domestic large and medium-sized cities is not very long and is not yet a mature way of promotion. Because of its price illusion effect, the effect of coupon leakage and the effect of making up for the purchase, the promotion method of "shopping rebate" has been relied on by many operators. However, the emergence and prevalence of "shopping voucher" promotion also exposed many problems. In order to make better use of the "shopping voucher" promotion model for profit, operators have set up many special "rules of the game". Such as setting many restrictive conditions on the use of "coupons" to restrict consumers' legitimate rights and interests such as the right to fair trade and the right to choose freely. By not defining the scope of promotional activities, it is called "price reduction is in fact a rise in price", and excessive return of coupons is deceptive. Inductive behavior infringes consumers' right to know, freedom of will and so on. However, consumers do not know that they take advantage of themselves and complacency, and even let consumers produce the concept of not returning coupons, not shopping, think that only coupons can buy good and cheap goods, who has a higher amount of coupons is good. The market order, originally oriented by quality, has been destroyed, and a large number of illegal acts have been committed in violation of the basic principles of contract law, such as the principle of good faith, the principle of fairness and the principle of equal compensation. Therefore, from the perspective of civil law, it is necessary to make a comprehensive analysis of the promotion of shopping rebate, so that consumers can clearly understand the essence of many illegal activities in the process of promotion. This paper is divided into five parts. The first part first analyzes the basic meaning of "shopping coupons"; then distinguishes them from other similar types of promotions to avoid ambiguity; finally, expounds the unique effect of "shopping coupons" promotion. In order to facilitate the following "shopping coupon" promotion for a more in-depth study. In the second part, the author expounds and comments on the academic viewpoints on the nature of "shopping voucher" promotion. The conclusion is as follows: the relationship of purchase and sale contract between the operator and the consumer is formed on the micro level of the promotion of "shopping voucher", which is the price clause in the contract of purchase and sale, and the "voucher" is a kind of certificate of right; on the macro level, it is a kind of voucher. The purchase coupon promotion is not a complimentary sale, but an ordinary promotion. The third part summarizes the common restrictive clauses in the sales promotion contract of "shopping rebate", and considers them as format clauses. Then it analyzes the legal effect of these restrictive clauses from the time of conclusion of contract and the latter two aspects of conclusion of contract. The fourth part reveals the common inductive behavior in the promotion of "shopping voucher", and finds out the essence of the civil fraud. The legal consequences are analyzed from two aspects: contract Law and Tort liability Law. In the fifth part, the author puts forward his own legislative suggestions from macro and micro aspects in view of the adjustment of "shopping rebate" promotion.
【學位授予單位】：天津師范大學
【學位級別】：碩士
【學位授予年份】：2013
【分類號】：D923
本文編號：2237024
[Abstract]:As a new type of promotion, the history of retail sales in domestic large and medium-sized cities is not very long and is not yet a mature way of promotion. Because of its price illusion effect, the effect of coupon leakage and the effect of making up for the purchase, the promotion method of "shopping rebate" has been relied on by many operators. However, the emergence and prevalence of "shopping voucher" promotion also exposed many problems. In order to make better use of the "shopping voucher" promotion model for profit, operators have set up many special "rules of the game". Such as setting many restrictive conditions on the use of "coupons" to restrict consumers' legitimate rights and interests such as the right to fair trade and the right to choose freely. By not defining the scope of promotional activities, it is called "price reduction is in fact a rise in price", and excessive return of coupons is deceptive. Inductive behavior infringes consumers' right to know, freedom of will and so on. However, consumers do not know that they take advantage of themselves and complacency, and even let consumers produce the concept of not returning coupons, not shopping, think that only coupons can buy good and cheap goods, who has a higher amount of coupons is good. The market order, originally oriented by quality, has been destroyed, and a large number of illegal acts have been committed in violation of the basic principles of contract law, such as the principle of good faith, the principle of fairness and the principle of equal compensation. Therefore, from the perspective of civil law, it is necessary to make a comprehensive analysis of the promotion of shopping rebate, so that consumers can clearly understand the essence of many illegal activities in the process of promotion. This paper is divided into five parts. The first part first analyzes the basic meaning of "shopping coupons"; then distinguishes them from other similar types of promotions to avoid ambiguity; finally, expounds the unique effect of "shopping coupons" promotion. In order to facilitate the following "shopping coupon" promotion for a more in-depth study. In the second part, the author expounds and comments on the academic viewpoints on the nature of "shopping voucher" promotion. The conclusion is as follows: the relationship of purchase and sale contract between the operator and the consumer is formed on the micro level of the promotion of "shopping voucher", which is the price clause in the contract of purchase and sale, and the "voucher" is a kind of certificate of right; on the macro level, it is a kind of voucher. The purchase coupon promotion is not a complimentary sale, but an ordinary promotion. The third part summarizes the common restrictive clauses in the sales promotion contract of "shopping rebate", and considers them as format clauses. Then it analyzes the legal effect of these restrictive clauses from the time of conclusion of contract and the latter two aspects of conclusion of contract. The fourth part reveals the common inductive behavior in the promotion of "shopping voucher", and finds out the essence of the civil fraud. The legal consequences are analyzed from two aspects: contract Law and Tort liability Law. In the fifth part, the author puts forward his own legislative suggestions from macro and micro aspects in view of the adjustment of "shopping rebate" promotion.
【學位授予單位】：天津師范大學
【學位級別】：碩士
【學位授予年份】：2013
【分類號】：D923
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