유럽소비자계약법에 있어서 철회권에 관한 고찰 (A Study on the right of withdrawal from European consumer contract law)

서지정보

· 발행기관 : 전남대학교 법학연구소
· 수록지 정보 : 법학논총 / 28권 / 1호 / 247 ~ 281페이지
· 저자명 : 송민수

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.

영어초록

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.

참고자료

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