遠距拍賣適用無條件後悔權之反省

Abstract

在網路無國界的時代，消保法關於郵購買賣之「無條件解除權」法制面規範是否仍能因應世界潮流的適用，是值得探討的問題。本文首先說明消費者之無條件後悔權的法理基礎，其次，探討以遠距競價拍賣締結之契約，是否得直接適用消保法的郵購買賣，即應買人享有無條件後悔權。於此，爰參考歐盟與德國立法例，考量公開競價拍賣制度的特殊性，例外排除於無條件後悔權的適用。再者，討論遠距拍賣競價拍賣契約是否包括目前盛行的網路拍賣。本文就此也將以德國實務與學說之見解及實體價值判斷加以討論，並就目前使用網路拍賣於遠距契約適用之限制。最後，本文提出不同看法，認為使用遠距拍賣之法律適用應就個案為實質審查，並不當然直接享有消保法的保障，並希冀消保法第十九條以負面列表的方式，限制公開性拍賣的遠距契約，例外排除於其適用範圍。

The obligation to provide pertinent information of the enterprise and the right of withdrawal of the consumer are parts of the traditional instruments of consumer protection for long-distance sales business. The discussion therefore begins with the purpose and task of the consumer protection right to withdraw and then devotes itself to its manifestations. Since the German legislature is of the opinion that a right of withdrawal would hamper strongly the use of auctions as a form of coordination and render an auction in the way of long-distance transactions impossible. In other words, according to § 312d Abs. 4 Nr. 5 BGB, there is no right of withdrawal in the contracts of long-distance transactions which were concluded in the form of auctions. The question is whether the § 312d Abs. 4 BGB contained exception provisions which excluded also online auctions from this right of withdrawal. The Federal Court of Justice of Germany (BGH) has ruled that the consumer is entitled to the right of withdrawal at the time of reaching agreement by means of such a time-auction. Unfortunately, in terms of content, such a judgment can hardly be considered satisfactory. Therefore, it is discussed to what extent consumers are entitled to a right of withdrawal in long-distance transactions. We then reflect upon the effectiveness of our consumer protection law.