論通訊交易合理例外情事之檢討與改進

The Reviews and Suggestions of Reasonable Matters for the Distance Sales

基於消費者健全自主決定的保護，消費者保護法於特種交易中引進無條件契約解除權，然因該權利是對契約嚴守原則的重大破壞，故應採例外從嚴的解釋方法，而緊扣交易類型，但是，會忽略交易標的之特殊性，使得實務上一直有例外情事的需求，以衡平企業經營者跟消費者的正當利益。為此，消費者保護法於2015年修法時參考國外立法例，引進特種交易之合理例外情事，但只適用於通訊交易，相較德國及歐盟的立法例，仍屬偏狹，而有修法放寬之必要。至於準則所列之合理例外情事內容，多是基於商品或服務之性質，在物理上或經濟上構成不易返還之情況，在考量企業經營者之經營成本及消費者可能權利濫用之疑慮，經過利益綜合衡量後的結果。因是採取所謂的「列舉方式」而非「例示方式」，故如須擴充，則須修改準則的內容，由於現行準則的規定，是一授權命令，擴充難度尚不至於太高。另外，既有之例外情事的適用，仍有若干不夠明確周延之處，本文亦一併予以檢討並提出具體建議，以供將來修法之參考。

The right of withdrawal in the special transactions has been introduced into the Consumer Protection Act in order to protect the sound independent decision of consumers. However, because this right is a nightmare of the sanctity of contracts, it should be interpreted narrowly based on the principle of strict explanation for exceptions. It also should be closely linked to the individual transaction. The particularity of the transaction objects may be ignored without any exceptions, and this has led to a continual need for exceptions in practices to balance the legitimate interests of traders and consumers. Consequently, when the Consumer Protection Act was amended in 2015, it introduced the reasonable matters for the distances sales by the reference to the foreign legislature. In comparison with legislative examples from Germany and the European Union, those exceptions remain relatively narrow, and should need to be amended. The reasonable matters are mainly based on the nature of goods or services, which are physically or economically unable to return. These considerations balance the costs of traders and the concerns of potential abuse of consumer rights. Since it adopts an enumerative rather than illustrative approach, any expansion would require modifying the content of the regulation.
Given that the current regulations are orders and not acts, expanding them should not pose overly high difficulties. Furthermore, the application of existing exceptions still has certain ambiguities, which are also reviewed and recommendations for future legislative amendments are also discussed in this article.