不干预、规制与自律:限制自带消费品入场消费行为的法解释学分析

Non-intervention,Regulation and Self-discipline:Analysis of Restricting Consumers to Bring Their Own Goods to Consume

限制自带消费品入场消费行为是经营者行使经营自主权的行为,具有正当性、合理性,法律不应对其特别规制,《中华人民共和国消费者权益保护法》《河南省消费者权益保护条例》等法律和地方性法规未设置禁止经营者限制自带消费品入场消费行为的条款。不过,法律虽然不禁止限制自带消费品入场消费行为,但经营者实施该行为,仍必须符合法律的规定,即必须履行告知和明码标价的义务、不与其他经营者协同采取行动的义务、不利用格式条款损害消费者权益的义务。行业规范是行业自律组织实现行业自律的工具,只能规制自愿加入该组织的经营者的成员权,不宜规定或宣示经营者对外享有的权利,更不能作为牟取行业不当利益的手段。行业自律组织利用行业规范组织、引导经营者实施限制自带消费品入场消费行为会导致限制竞争的后果,有损消费者的合法权益,故行业规范不应组织、引导经营者实施该类行为,而应当从自律的角度对该类行为进行规范和约束。

With features of legitimacy and rationality, restricting consumers to bring their own goods to consume is a conduct that the business operator exercises its autonomy in management and operation, which should not be specially regulated by the law. Law of PRC on Protection of Customers＇ Rights and Interests and Regulation of He＇ nan Province on Protection of Customers＇ Rights and Interests and other laws and lo- cal regulations do not prohibit business operators from restricting consumers to bring their own goods to con- sume. However, although laws do not prohibit business operators from restricting consumers to bring their own goods to consume, business operators shall still comply with laws when adopting such restriction, that is, business operators shall perform their obligations to inform and mark clearly prices of commodities, not to take coordinated actions with other business operators, not to take advantage of standard clauses to in- fringe on customers＇ rights and interests. Industrial norms, as a tool of the self-regulatory organization of the industry to achieve self-discipline, can only regulate member rights of business operators who voluntarily join in such organization. It is inappropriate to regulate or announce business operators＇ rights towards non- members in industrial norms. Particularly, such norms must not become the means of seeking improper in- dustrial benefits. When the Self-regulatory organization of the industry takes advantage of industrial norms to organize or direct business operators to restrict consumers to bring their own goods to consume, the result of limiting competition will be achieved and customers＇ rights and interests will be infringed on, so the indus- trial norms shall not organize or direct business operators to conduct such restriction but regulate and limit such restriction from the perspective of self-discipline.