后悔权的立法审视与实践展望——以新《消法》第25条为中心

Legislation Survey and Practice Prospect of the Right of Rescission——Based on the Term 25 in New Law on Protection of the Rights and interests of Consumers

后悔权是《消费者权益保护法》修订过程中所争论的的焦点问题之一。修订后的《消法》将后悔权引入其中,并不意味着相关争论已经尘埃落定。相反,面对将后悔权定位为消费者权利抑或经营者义务所带来的困惑,如何协调后悔权条款所涉及的强制性规范与任意性规范,如何处理后悔权行使过程中倾斜保护与利益平衡之间的冲突,不仅需要从法理层面进一步廓清,亦需要从实践操作层面进一步细化,方能使后悔权制度真正发挥作用。

The right of rescission is one of the controversial focuses in revising the Law on Protection of the Rights and Interests of Consumers. The revised law which has introduced the right of rescission, does not mean that the relevant debates have been settled. On the contrary, facing the confusion of taking the right of rescission as the right of consumers or the obligation of operators, we should try to solve such problems as how to reconcile the terms involved peremptory norms and arbitrary norms, how to deal with the conflicts between the consumers protection and the balance of interests in fulfilling the right of rescission, etc. Therefore, we should further specify it from the legal level, and further refine it in practice, to make the right of rescission really play a role in reality.