「消費者」概念的比較法發展──兼述保證契約適用消保法及金保法問題

The Comparative Legal Development of the Notion of“Consumer”: Including Discussions on the Applicability of the Consumer Protection Act and the Financial Consumer Protection Act to Guarantee Contracts

「消費者」概念，應參考一個人在特定法律關係中地位來評估，與契約標的無涉。歐盟指令定義「消費者」係「出於其行業、業務、工藝或專業外目的之行為」採功能標準，乃因在該等範疇外之行為較少交易經驗累積，未能反覆地繼續從事類似行為，其資訊的質與量、議約能力等，確實與「同種行為反覆為之」之企業經營者間，具締約地位落差。歐盟法院近年從Dietzinger案、Costea案至影響重大的Tarcău案，已認非出於其行業、業務或專業目的之保證人係「消費者」。信用貸款之核准實際上即是提供服務，保證人為金融消費者，相關金保法不足部分應修正，並應解釋為現行消保法之「消費者」。

The concept of‘consumer’should be assessed by reference to a person’s status in relation to a particular legal transaction, irrespective of the subject matter of the contract. The EU directives define‘consumer’based on the functional criterion of‘activities outside his trade, business, craft, or profession.’This is because consumers have accumulated less trading experience outside the categories and are less likely to repeatedly engage in similar behaviors. Therefore, consumers indeed have a disparity in the quality and quantity of information, as well as bargaining power, compared to business operators. In recent years, the CJEU, from cases like Dietzinger, Costea, to the significant impact Tarcău case, has recognized that a guarantor, who acting for purposes which are outside his trade, business, craft, or profession, qualifies as a‘consumer’. The grant of a credit facility is indeed the provision of a service, thus guarantors should be considered financial consumers. The inadequate aspects of financial consumer protection laws should be amended, and the guarantor should be considered a‘consumer’under the current Consumer Protection Law.