理想照進現實：涉外消費者合同選法規則再檢視

To Make Ideal Shine into the Reality: Reexamination of the Rules for the Selection of Foreign-related Consumer Contracts

為矯正消費者在消費活動中的不利地位，消費者合同選法規則從一般合同選法規則中獨立出來。然而，涉外消費者合同定義不明、禁止經營者參與法律選擇使利益的天平逐漸失衡。現行規則中保護消費者的邏輯在“互聯網+”時代無法推進。對此，應明晰消費者合同的定義。在具體案件中與“直接適用的法”相銜接，允許當事人合意選法。將網絡消費平台註冊地法律作為消費者合同可適用的法律，使保護消費者的理想在網絡消費新形式下亦成為現實。

In order to rectify the weak position of consumers in consumer activities, the rules for the choice-of-law of foreign-related consumer contracts have independent from the general rules for the choice-of-law of foreign-related contracts. However, the definition of foreign-related consumer contract is not clear. Prohibiting the operator to participate in the selection of law makes the balance of interests gradually out of balance. In the era of 'Internet plus', the logic of consumer protection contained in the current rules cannot be advanced. In this regard, we should make clear the definition of consumer contract, link up the rules of 'directly applicable law' with flexibility in cases, and allow the parties to select the applicable law in their will. We should take the law of the place of registration of the online consumer platform as one of the applicable laws of the consumer contract, and make the ideal of consumer protection come true under the new form of the online consumption.