유럽소비자계약법에 있어서 철회권에 관한 고찰

• 영문명: Study on the right of withdrawal from European consumer contract law
• 발행기관: 전남대학교 법학연구소
• 저자명: 송민수(Song, Min-su)
• 간행물 정보: 『법학논총』제28권 제1호, 247~281쪽, 전체 35쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2008.06.30

영문 초록

The right of withdrawal is still a somewhat problematic legal instrument in many EU States. One of the main problems is that the different European directives that have introduced cooling off-periods, have cooling off-periods of rather different lengths. In this respect, the directives regulating the right of withdrawal lack coherence. The European Commission has recently raised the question whether the duration and modalities of the withdrawal periods should be harmonized and standardized. In this article, I will examine whether such is possible. The main focus of the article is, however, on a more preliminary question, under what circumstances the right of withdrawal is an effective and useful means of consumer protection. In this article, I will try to answer that question for the rights of withdrawal in the European directives mentioned above. This article is based on an analysis of the respective directives introducing a right of withdrawal and a cooling off-period and on their implementation in the German and Dutch legal systems, and on comparative research on Dutch and German law on the matter. From the article it will be clear that even though the rights of withdrawal, as a rule, function relatively well, a more uniform regulation of the right of withdrawal - including a unitary terminology - in European legislation seems feasible. It has been argued that a uniform cooling off-period of two weeks from the moment when the contract is concluded is to be preferred over the existing situation. In order for the right of withdrawal to be effective, the consumer must be made aware of his right of withdrawal by the seller or service provider. Of course, such information must be provided in a clear manner and in clear and intelligible language, in at least the language in which the contract was concluded. Extension of the cooling off-period if the seller or service provider does not properly inform the consumer thereof is an effective incentive to ensure that the seller or service provider will perform his obligation to inform. However, it was argued, as law at some point in time needs to resign itself to reality, a maximum period for the cooling off-period is needed for reasons of legal certainty. The notice of withdrawal should not be subject to any form requirement. However, if the consumer chooses to send a notice in writing or on another durable medium for evidentiary reasons, the dispatch principle should apply as regards the timeliness of the withdrawal. Nevertheless, these observations alone do not suffice to propose a coherent, uniform regime for cooling off-periods. If the European legislator really aspires to develop such a regime, it will of course have to take into account the need to provide clear answers as to the consequences of timely withdrawal, especially as regards the return of goods delivered and money paid, as well as the consequences regarding contracts that are connected with the contract from which the consumer has successfully withdrawn.

목차

Ⅰ. 시작하며

Ⅱ. 유럽소비자계약법에서 철회권의 효율성과 기능

Ⅲ. 철회권의 행사요건

Ⅳ. 유럽연합에서의 철회권에 관한 통일적인 규율에 관한 분석

Ⅴ. 마치며

키워드

철회권 유럽연합지침 냉각기간 소비자계약 적시의 철회 냉각기간의 통일 right of withdrawal European directives cooling off-period consumer contract timely withdrawal uniform regime for cooling off-periods