有奖销售的法律问题研究

The Study of Legal Issues of Premium Sales

附赠式有奖销售本质上属于单一的买卖合同,经营者交付赠品的行为并非赠与,而是买卖合同的履行内容。买卖合同解除,赠品应当与所购商品一并退还;抽奖式有奖销售包括买卖合同和射幸合同,其中射幸合同相对于买卖合同具有独立性和无因性,买卖合同解除,消费者可以依据有效的射幸合同继续保有奖品或奖金,无需退还。

The prize-giving sales is essentially a kind of onefold sales contract,thus the sellers＇ delivery of gifts is not a donation to the consumers,but the performance of the sales contract.So if the sales contract is terminated,the gifts as well as the purchased goods shall be returned to the seller.The lottery-giving sales consist of the sales contract and the aleatory contract.And the aleatory contract has independent and abstract characters with respect to the sales contract.Accordingly,if the sales contract is terminated,the consumers have rights to keep the prize by the virtue of the aleatory contract,and need not to return it.