特許經(jīng)營(yíng)冷靜期制度的法律思考
發(fā)布時(shí)間：2018-10-12 15:20
【摘要】：特許經(jīng)營(yíng)作為現(xiàn)代商業(yè)、企業(yè)的一種新型商業(yè)經(jīng)營(yíng)模式和組織形式,既是市場(chǎng)經(jīng)濟(jì)發(fā)展的必然產(chǎn)物,又是商業(yè)領(lǐng)域的一場(chǎng)深刻革命,自1859年在美國(guó)紐約誕生以來(lái),已在全球范圍內(nèi)廣為滋生蔓延。特許經(jīng)營(yíng)中特許人與受許人本應(yīng)是地位平等、互相獨(dú)立的市場(chǎng)主體,二者關(guān)系也應(yīng)是平等主體之間的民商事關(guān)系。但是,特許人對(duì)特許經(jīng)營(yíng)組織的“持續(xù)控制”,以及特許經(jīng)營(yíng)合同締約過(guò)程中存在的受許人投入專用性資產(chǎn)和特許人機(jī)會(huì)主義行為,使得特許人與受許人存在事實(shí)上的不平等和利益上的不平衡,受許人處于弱勢(shì)地位,權(quán)利易于受到損害。而要實(shí)現(xiàn)公平正義的法律價(jià)值,立法者必然要啟動(dòng)利益平衡的調(diào)節(jié)機(jī)制,通過(guò)法律手段使雙方利益關(guān)系向受許人傾斜,從而實(shí)現(xiàn)特許人與受許人之間的利益平衡。于是我國(guó)2007年施行的《商業(yè)特許經(jīng)營(yíng)管理?xiàng)l例》就新增加了很多保護(hù)受許人的條款,其中第十二條關(guān)于冷靜期制度的規(guī)定引起了廣大學(xué)者和從業(yè)人員的注意。雖然它在特許經(jīng)營(yíng)體系中是第一次引入,但是它對(duì)于消費(fèi)者、直銷商而言并不陌生。冷靜期制度首先被應(yīng)用于直銷法中,在國(guó)外也被消費(fèi)者和經(jīng)營(yíng)者所熟知。盡管它由來(lái)已久,并且在西方國(guó)家已經(jīng)發(fā)展到相對(duì)完善的地步,但是縱觀國(guó)內(nèi)外學(xué)者,鮮有將該制度真正進(jìn)行梳理的書籍文獻(xiàn),所能找到的參考資料也都僅僅局限于法條規(guī)定和少部分的引用介紹。因此本文就該制度進(jìn)行梳理介紹,借鑒國(guó)外成功經(jīng)驗(yàn),從立法角度來(lái)完善我國(guó)的冷靜期制度,從而實(shí)質(zhì)上保護(hù)受許人的合法利益。本文除緒論和結(jié)語(yǔ)外,正文部分主要分為四部分。第一部分對(duì)特許經(jīng)營(yíng)體系中冷靜期制度的理論進(jìn)行分析,從而引出冷靜期制度在特許經(jīng)營(yíng)體系中存在的必要性。第二部分是對(duì)我國(guó)冷靜制度的實(shí)行現(xiàn)狀進(jìn)行分析,援引案例發(fā)現(xiàn)我國(guó)存在的問題有:條文內(nèi)容的模糊、處理后果的缺失、執(zhí)行部門的欠缺等方面。第三部分是對(duì)國(guó)外冷靜期制度的介紹,并對(duì)各國(guó)相關(guān)方面的立法長(zhǎng)處進(jìn)行歸納總結(jié)以供我國(guó)借鑒。從而引出第四部分的幾方面的立法完善:明確法律條文的內(nèi)容、增加處理后果的規(guī)定、協(xié)調(diào)權(quán)利保障的部門。
[Abstract]:Franchising, as a new business mode and organizational form of modern commerce, is not only the inevitable outcome of the development of market economy, but also a profound revolution in the field of commerce. Since its birth in 1859 in New York, It has spread around the world. Franchisor and franchisee should be equal and independent market subjects in franchise operation, and the relationship between them should also be the civil and commercial relationship between equal subjects. However, the franchisor's "continuous control" over the franchise organization, as well as the franchisee's investment of special assets and franchisor's opportunistic behavior in the process of concluding the franchise contract, It makes the franchisor and the franchisee exist the actual inequality and the imbalance of interests, the franchisee is in a weak position, and the rights are vulnerable to damage. In order to realize the legal value of fairness and justice, the legislator must start the adjustment mechanism of the balance of interests, and make the relationship between the interests of both sides tilt to the franchisee through legal means, so as to realize the balance of interests between the franchisor and the franchisee. As a result, the regulations on Commercial franchise Management in 2007 have added a lot of provisions to protect the franchisees, among which the provisions of Article 12 on the cooling-off period system have attracted the attention of scholars and practitioners. Although it is introduced for the first time in franchise system, it is no stranger to consumers and distributors. The cooling-off period system is first applied in the direct selling method, and is also well known by consumers and operators abroad. Although it has a long history, and has developed to a relatively perfect situation in western countries, but throughout the domestic and foreign scholars, there are few books and documents that really comb the system. The references available are also limited to the provisions of the law and a small number of citations. So this paper introduces the system, draws lessons from the successful experience of foreign countries, consummates our country's cooling-off period system from the legislative angle, so as to protect the legitimate interests of the franchisee in essence. In addition to the introduction and conclusion, the text is divided into four parts. The first part analyzes the theory of the cooling-off period in the franchise system, which leads to the necessity of the cooling-off system in the franchise system. The second part is to analyze the current situation of the implementation of the calm system in China, citing the case found that there are some problems in our country: the ambiguity of the content of the articles, the lack of the consequences, the lack of executive departments, and so on. The third part is the introduction of the foreign cooling-off period system, and the relevant aspects of the legislative strengths are summarized for our reference. It leads to the legislative perfection of the fourth part: clarifying the content of the legal provisions, increasing the provisions to deal with the consequences, and coordinating the departments of the protection of rights.
【學(xué)位授予單位】：上海師范大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2015
【分類號(hào)】：D922.29
[Abstract]:Franchising, as a new business mode and organizational form of modern commerce, is not only the inevitable outcome of the development of market economy, but also a profound revolution in the field of commerce. Since its birth in 1859 in New York, It has spread around the world. Franchisor and franchisee should be equal and independent market subjects in franchise operation, and the relationship between them should also be the civil and commercial relationship between equal subjects. However, the franchisor's "continuous control" over the franchise organization, as well as the franchisee's investment of special assets and franchisor's opportunistic behavior in the process of concluding the franchise contract, It makes the franchisor and the franchisee exist the actual inequality and the imbalance of interests, the franchisee is in a weak position, and the rights are vulnerable to damage. In order to realize the legal value of fairness and justice, the legislator must start the adjustment mechanism of the balance of interests, and make the relationship between the interests of both sides tilt to the franchisee through legal means, so as to realize the balance of interests between the franchisor and the franchisee. As a result, the regulations on Commercial franchise Management in 2007 have added a lot of provisions to protect the franchisees, among which the provisions of Article 12 on the cooling-off period system have attracted the attention of scholars and practitioners. Although it is introduced for the first time in franchise system, it is no stranger to consumers and distributors. The cooling-off period system is first applied in the direct selling method, and is also well known by consumers and operators abroad. Although it has a long history, and has developed to a relatively perfect situation in western countries, but throughout the domestic and foreign scholars, there are few books and documents that really comb the system. The references available are also limited to the provisions of the law and a small number of citations. So this paper introduces the system, draws lessons from the successful experience of foreign countries, consummates our country's cooling-off period system from the legislative angle, so as to protect the legitimate interests of the franchisee in essence. In addition to the introduction and conclusion, the text is divided into four parts. The first part analyzes the theory of the cooling-off period in the franchise system, which leads to the necessity of the cooling-off system in the franchise system. The second part is to analyze the current situation of the implementation of the calm system in China, citing the case found that there are some problems in our country: the ambiguity of the content of the articles, the lack of the consequences, the lack of executive departments, and so on. The third part is the introduction of the foreign cooling-off period system, and the relevant aspects of the legislative strengths are summarized for our reference. It leads to the legislative perfection of the fourth part: clarifying the content of the legal provisions, increasing the provisions to deal with the consequences, and coordinating the departments of the protection of rights.
【學(xué)位授予單位】：上海師范大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2015
【分類號(hào)】：D922.29
【參考文獻(xiàn)】
相關(guān)期刊論文 前10條
1 溫世揚(yáng),周s，
本文編號(hào)：2266627
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