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现代商品经济社会,随着生产与消费的分离,消费者问题逐渐显露出来，而科技、通讯技术的发达和传播媒介的大肆轰炸，消费者与生产者、经营者之间的信息不对称问题日益严重，虚假宣传侵害消费者知情权的事件随处可见。为了保障消费者知情权的实现,我国虽已形成了以《消费者权益保护法》为核心的法律体系，但由于法律存在一定的缺陷,消费者知情权在现实生活中仍不断被侵犯，所以明确我国消费者知情权的法律保护体系，有助于更好地保护消费者权利和推动消费者保护立法目的的实现。本文通过对消费者知情权的产生和发展、现状、性质的探讨，结合司法实践中，消费者知情权受到侵害时还存在着法律保障制度不足的情形，从理论的角度分析消费者知情权的法律保障在实践中应如何完善的问题。
Modern commodity economy society, with the separation of production and consumption, the consumer problem gradually revealed, and science and technology, communication technology developed and media bombing, consumers and producers and business operators, the serious information asymmetry problem between the false propaganda infringe on consumers' right to know of events can be seen everywhere. In order to ensure the realization of consumer's right to know, our country has formed the "consumer rights and interests protects a law" as the core of legal system, but the law has certain defects, consumers' right to know in real life continues to be violated, so clear legal protection system of consumer's right to know in our country, help to better protect consumer rights and promoting the implementation of consumer protection legislation purpose. This article through to the emergence and development of consumers' right to know, the present situation, the nature of the study, combining with the judicial practice, the consumers' right to know are violated when there is the situation of insufficient legal security system, from the perspective of the theory, the legal protection of consumers right to know in practice should be the problem of how to improve.
Key words: consumers' right to know; The economic law rights; Information failure; Mandatory disclosure. Consumer protection
The Abstract
Concerning the legal guarantee of the consumers'right to know In the modern commodity economy society,with the separation of production and consumption,consumer problems gradually reveal,and science,technology,the communication technology developed and media wantonly bombing consumer and producer,operator,the information asymmetry between the false propaganda and more serious violation of consumers'events everywhere.In order to ensure the realization of consumer's right though,China already has formed by the consumer protection law as the core of the legal system,but because the law there are certain flaws,consumers'right to know in real life continue encroached,so clearly China consumer right of legal protection system is conducive to protect consumers'rights and promote realize the consumer protection legislation purpose.This article by means of discussion the consumers'right to know the emergence and development of the present situation and the nature,combined with judicial practice,consumer rights and interests are infringed upon existing legal safeguard system of the situation,the theory of insufficient from the perspective of the legal guarantee of consumers'in practice how to perfect the problem.
Key Words: Consumers' rights; Information, economic law; Mandatory disclosure ineffectiveness. Consumer protection,
Legal protection of consumers' right to know
1 consumers' right to know the legal nature of... 1
1.1 consumers' right to know the meaning of... 1
1.2 consumers' right to know the economics foundation... 2
1.3 consumers' right to know the nature of economic law... 4
2 legal protection of consumers' right to know and their shortages in China...
2.1 legal protection of consumers' right to know in China...
2.2 the lack of legal protection of consumers' right to know in China...
3 consumers' right to know the improvement of the legal protection...
3.1 the operator of the perfection of information disclosure obligation...
3.2 the obligation of government information perfect...
3.3 the improvement of the social intermediary information obligations...
3.4 the obligation of media information provide perfect...
4 conclusion...
References...
Legal protection of consumers' right to know
1 the legal nature of consumers' right to know
1.1 the meaning of the consumers' right to know
Concept of consumer rights, as President Kennedy in 1962 by the United States in the state of the union to protect the interests of the consumer, is put forward. Consumers' right to know and right of may call it aware of the truth, it is the consumer shall have the knowledge that the purchase and use goods or accept service the rights of the real situation. Here's "knowledge" has two meanings: one is a consumer shall have the right to ask about goods; The second is the operator without asking should truthfully record and description of goods and services. The "real" here refers to correctly reflect the comprehensive situation, should not take any fraud. Under our country "consumer rights and interests protects a law" (hereinafter referred to as "elimination") specified in article 8: "consumers have the right to according to the different situation of goods or services and ask the operator to provide the prices of goods, producing area, producer, usage, performance, specifications, grade, main ingredients, production date, expiry date, certificate of inspection, operation instruction, after-sales service, specifications, expenses, etc." Thus, the consumers' right to know specific content includes three aspects: one is about the basic condition of the goods or services. This includes the name of commodity, producing area, trademark, specifications, the producer name, date of production, service content, etc. The second is about the state of the specific technology. The usage, performance, including this contains components, specifications, grade, validity, inspection certificate, specification, etc. Three is about the price of goods or services and products after-sales service. Because the price of a commodity or service is the key to the deal, the most direct relationship to the immediate interests of the operators and consumers, and commodity after-sales service directly reflect the operator's confidence in goods. To service industry at present, the management is not strict, price charge is chaotic, so the consumers in order to avoid ripped off damaged before receiving services should be determined between price and other issues with operator.
In addition, consumers' right to know also includes the following three aspects of content: one is the consumer before buying goods shall have the right to demand business operators shall, in accordance with the laws and regulations, and the way to indicate the actual circumstances of the commodity or service, the operator should take the initiative to fulfill obligations. Second, consumers in the purchase and use goods or accept service, have the right to the relevant situations of the commodities or services
Ask and learn, that is, the consumer active access to information. And consumers in the process of trading to ask and understand the related situation of the commodities or services right is protected by law, the operator should carefully and patiently give consumers about the answer. Three is that consumers should not only aware of the situation of the goods or services, what is more important to know the real situation. Operators in the launch of a product or service to consumers, shall have the duty to provide the real situation, if the information provided is not real or fictional, consumers can claim transaction is invalid.
But to understand the connotation of "consumers' right to know," not just confined to "elimination" article 8 of the regulation in our country, because in addition to the other provisions of the law, such as article 13 "consumers get the knowledge about" and "operator's obligations" in the third chapter 18, 19, 20, 22, and many other law, and the "advertisement law" in China, the interim provisions on food advertising, criminal law and judicial interpretation related civil and commercial legal norms many are involved in the consumer's right to know, all of these can be regarded as a rich and the development of consumer's right to know.
1.2 consumers' right to know the basic economics
Consumers' right to know is produced in a specific context, which show the consumption information asymmetry phenomenon aggravate the objective phenomenon and the law of the rise of social ideological trend and the extensive consumer protection movement of subjective demands. The following author of consumers' right to know in some from the Angle of economics. #p#分页标题#e#
Of the original deal is at a certain stage of social development, people in order to satisfy the life needs a kind of equivalent exchange, but they did not produce consumers' right to know the consciousness. Until the 18th century western countries began to study the protection of consumers' rights and interests. But at the time of the western mainstream political thought is to protect the rights of individual freedom, the history of law, in order to "personal rights" to build the legal system, then began to sprout from the ideas of the consumers' right to know. Abuses in the 19th century, capitalism began to exposure, with marxist criticism of capitalism's relentless, appeared to defend capitalism of sociology and law theory, the theory argues that people in the society are interdependent, so people must assumes the obligation to the society. The theory of development is based on "social", then emphasizes the social interest, restrict individual liberties under this premise, this became the thoughts origin of consumer rights. 20th century, the rapid development of the economy of the capitalist countries, goods monopoly, social commodity structure is more and more complicated, the commodity manufacturing more and more specialization, between consumers and producers and operators on relevant commodity information asymmetry is more and more obvious, the quality of commodity raw materials composition, production operators, properties, USES, production method, production cost, and so on have comprehensive understanding, thus formed a production operator of information superiority, and consumers can only listen to the operator, or through the observation of the appearance of the goods and own experience knowledge of commodity quality self judgment, but not for goods production composition, quality, performance, safety performance reliable concrete judgment. Production operators in order to maintain their own interests in the deal, often use dishonest or even illegal means to hide information, or false advertising, mislead consumers, worsening the information asymmetry between the two sides, damage the rights and interests of consumers. Information asymmetry cause market trade imbalance between the interests of both sides, affected the realization of social justice, the principle of notarization and the efficiency of resource allocation in the market. As the socialization of law and trend of the rise of the consumer protection movement began to carry out, the consumer groups a law required to guarantee the safety of its consumer rights, the distrust of the country's for operators to improve consumer groups, to maintain the effective operation of market economy order, the protection of consumers' right to know was born.
1.3 consumers' right to know the nature of economic law
In the existing research results, however, the consumers' right to know the nature of the recognized scholars mainly have two ideas: the idea is to consumers' right to know as a kind of civil rights, or the modern civil rights is referred to as "civil rights"; Another view, the right to know of consumers as a kind of basic human rights, is referred to as "human rights". In addition, there are a few scholars put forward the other point of view, the nature of consumers' right to know the following me to do the simple way:
1.3.1 said to "civil rights" representative views reason to the argument
"Civil rights" point of view is basically the mainstream view of scholars of civil law, they believe the body of the consumer rights is that consumers, its subject is the operator, both for the main body of private law (civil law), that is, this right is in private law between the subjects of rights, it certainly is in the nature of private law [1]. But the author thinks that, though there is between consumers and business operators for their buying and selling, or service contract relationship, between them, first of all, based on the identity of the main body of private law (civil law), but this is just the basic relationship between consumers and business operators, between consumers and business operators, there are disadvantaged because of information asymmetry and so on consumers, by the state by giving its different from general contract relationship between the rights of the parties and special relief, in this kind of relationship, consumers and businesses are no longer the main body of private law (civil law), but become the main body of the economic law.
"Modern" think consumers rights of civil rights is a particularity of civil rights, and the particularity in consumer and business operator position essence is not equal. But in judicial practice, the realization of consumer's right to know way is not limited to the information provided by the operator, it also requires countries, consumer organizations, and individuals and the mass media through a variety of ways such as supervise ACTS harmful to consumers' right to know in order to protect consumers' right to know is inviolable. The state and the relevant consumer organizations involved in the implementation of consumers right to know, is a civil rights that cannot be explained by the, even the "modern" civil rights cannot develop diversified subject of obligation.
Civil rights and cannot fully protect the rights of consumers, its emphasis on consumers' right to know the nature of the civil rights against play countries and consumer organizations to protect consumers' right to know of the initiative and enthusiasm. And the civil law protection of civil rights model is basically eliminating, the passivity and nachtraglichkeit characteristics, the requirements of the consumer rights and the thought of the preventive protection deviating, not suitable for to protect consumer rights. Said finally, civil rights will be limited to between the parties rights and obligations relations, ruled out for the sake of safeguarding the interests of the whole society about the possibility of public interest litigation.
In conclusion, civil rights, said that although there is a reasonable side, but this conclusion itself exists some shortcomings, with the modernity of civil law not only can not fully explain the consumers' right to know, is unfavorable to fully protect the rights of consumers.
1.3.2 evaluation of "human rights"
In our country, think consumers right to know belongs to human rights mainly include constitutional scholars and economic law. Constitutional scholars point of view is not according to the nature of the consumers' right to know, do not discuss here. While economic law scholars actively introduced on consumer rights issue of human rights, said even as, including consumers' right to know, the foundation of the consumer rights. This view has a certain meaning, highlights the right or the importance of consumer rights, emphasize the obligations and responsibilities of the country, is helpful to protect consumers' right to know. However, the author thinks that the consumer rights, is a kind of specific rights, and human rights is an abstract rights, with the abstract concept of human rights to explain the specific nature of the consumer rights needs further investigation. And at the present stage in China will rise in consumer rights as the basic human rights are not realistic, in addition to declare it in the form of the meaning, there is no active substance, even if it comes down to human rights, it also has the possibility of other law rights.
1.3.3 other views
In addition, there are a few scholars put forward other views. Duality: such as some scholars believe that consumer rights is a civil rights, private rights and interests of consumers shall have the right to maintain own as individuals; Second, the economic law right, consumers also have the right to, as the representative of consumer groups, to maintain the public rights and interests of consumers [2]. After analyzed the characteristics of the consumer rights and scholars, including the consumers' right to know the nature of the consumer rights made no answer, don't do detailed here.
1.3.4 my point of view
Due to trade the present situation of information asymmetry, make commodities trading is essentially not equal "freedom of contract", which makes the academia and lawmakers are more inclined to protect in a weak position of the consumers, so the "elimination" emphasizes the substantial justice, legislation is a kind of tilt. Consumers' right to know beyond the scope of civil rights, the relocation in civil rights even the modern civil rights has not fully explain the consumers' right to know, is not conducive to strengthening the protection of consumers. The author's conclusion is that the consumers' right to know is the nature of the multi-dimensional: first of all, the consumers' right to know as early as in the civil law, consumers and operators of a particular legal relationship, the consumers' right to know is a kind of can get relief of civil rights; Second, consumers' right to know can ultimately comes down to the right of human rights; Finally, the problems about the properties of the consumers' right to know should jump out of the "civil rights" and "human rights" framework, from the Angle of economic law review, in essence, consumers' right to know should belong to a kind of economic law on the right.
#p#分页标题#e#
Modern society, the social overall interests as the center of the legal framework, the economic law as an independent legal department has become the consensus of the law in our country. Consumers' right to know as a matter of the economic law right, it possesses the attribute of the private rights and public rights. From private rights perspective, our country "elimination" gives consumers entity on the litigation right, allow when operator violates the consumer right to know, ask for compensation from the operator. From the perspective of the public rights "elimination" of articles 5 and 6, respectively, the state and the whole society to protect consumers' legal rights and responsibilities, in the "elimination" in the fourth chapter and the fifth chapter separately for the more specific provision. Countries and consumer organizations to protect consumers' right to know is the main means of disclosure information on consumption to consumers. However, in general, our country "elimination" or mainly by means of the protection of civil rights to protect consumers' right to know, to remove this method still exists some disadvantages, with the economic law right point of view to re-examine the consumers' right to know and establish the relevant supporting system, help to better protect consumer rights, to promote the implementation of consumer protection legislation purpose.
2 legal protection of consumers' right to know and their shortages in our country
2.1 the consumers' right to know of legal protection in our country
2.2 the lack of legal protection of consumers' right to know in our country
Our country "elimination" or mainly by means of the protection of civil rights to protect consumers' right to know.. (2)...
3 consumers' right to know the improvement of the legal protection
3.1 the operator of the perfection of information disclosure obligation
3.2 the obligation of government information
The rules although most is a declared terms, no specific rights and obligations of the content, but at least we can think that country and the relevant consumer protection groups shall take various measures to guarantee the realization of consumer's right to know. Here refers to measures not referring to the judicial relief way, but through some way to provide market can provide information to consumers or operators are reluctant to disclose information, such as reported bird flu or the existence of hand, foot and mouth disease and its risk, publish information about the market, etc. In addition,
Article 28 "elimination" provisions of the relevant administrative department of the people's governments at all levels "shall, in accordance with the provisions of the laws and regulations, within the scope of their respective duties, take measures to protect the legitimate rights and interests of consumers." The law there is no doubt that requires the government to actively support the expression of consumers' right to know, as a legal obligation to rules. "Elimination" article 32 also will provide consumers with consumer information as one of the responsibilities of consumer society. Because of this, some people think that the government and the public welfare groups provided directly to information is one of the main methods of consumers to exercise their right to know, the country and the society is to protect consumer rights embodies the principle of appropriate intervention [22].
3.3 the improvement of the social intermediary information obligations
3.4 media information to provide the perfect obligation
4 conclusion
Have the right to informed Fang Sheng, informed rights has no foundation. Consumers' right to know is everything the consumer rights and interests of the premise and foundation, and wake up other consumer rights horn and present throughout the essence of other consumer rights.
By extending of consumers' right to know, security, fully and effectively protect the rights of other consumer, further awakening of social rights, cultivate the consciousness of citizen to defend their rights, habit and ability, and from the requirement for the quality of products, services, private law field operators, gradually to the "operator" in the field of public law - the government operation quality and the demands of public goods and torture, further harmonious and scientific development of the society in our country.
[1]. Consumer protection laws research [M]. Beijing: law press, 2003.564, 565565564-565.
[2] Zhou Hao nai-xin Chen. Duality theory of consumers rights [J]. Journal of xiangtan university journal of social science, 2003, (6) : 84-86, 86.
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