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서예헌 ( Xu Yixuan ),왕봉업 ( Wang Fengye ) 경상대학교 법학연구소 2020 法學硏究 Vol.28 No.4
网购合同从其产生时就因具有高效性,给人民带来了极大便利而取得了快速发展,作为一种新兴的合同形式,其既有着传统合同的本质,即当事人在合法自愿的基础上达成的改变民事法律关系的协议,又因为其产生和订立均依靠网络而有着不同于一般合同的特点。新冠疫情的突然爆发影响了人们工作生活的方方面面,在疫情期间人们出行受到极大阻碍,网购越来越成为人们的选择,但同时合同地履行也必然受到阻碍,网购合同作为一种合同,也不可避免地受到了此次疫情的影响,鉴于网购在人们日常的生活中占比日益增大,网购合同也发挥着越来越重要的作用,本文探讨近期新冠疫情背景下网购合同展现出的特征,研究如何减少疫情影响,顺利履行网购合同以及疫情下网购合同责任的承担。 本文以此次新冠肺炎的疫情为契机,分别从四部分进行了研究,在第一部分分析了新冠疫情的法律性质,对新冠疫情的定性和分析,同时探讨不可抗力与情势变更的特性,新冠疫情属于何类的问题;第二部分分析新冠疫情下网购合同的履行,探究了网购合同的本质,网购合同的具体履行情况分析;随后讨论新冠疫情下网购合同的违约责任,标的物不同,违约程度不同, 应当承担不同的违约责任;在最后一部分中,分析新冠疫情下网购合同的履行保障,为了网购合同的顺利履行,经营者、消费者应当谨慎使用其权利,按约履行义务,监管部门对此进行积极的监督。本次通过研究探寻疫情下的网购合同履行,以期对消费者权利的保护及网购的发展有所帮助。 The online shopping contract has been developed rapidly since its emergence because of its high efficiency and great convenience for people. As a new form of contract, it has the essence of traditional contract, which is that the agreement is reached by the parties on the basis of legality and voluntariness to change the civil legal relationship, and it is different from the general contract because its emergence and conclusion depending on the network. The sudden outbreak of COVID-19 epidemic has affected all aspects of people's work and life. During the epidemic, people's travelling mobility has been greatly restricted, therefore, the online shopping has increasingly been regarded as people's shooping choice. But at the same time, the fulfillment of contracts is bound to be hindered. As a contract, the online shopping contract is inevitably affected by the epidemic. In view of the increasing proportion of online shopping in people's daily life, online shopping contracts also play an increasingly important role. This paper discusses the characteristics of online shopping contracts under the background of the recent COVID-19 epidemic, studies how to reduce the impact of the epidemic to fulfill online shopping contracts successfully, and researches liabilities should be taken on the online shopping contracts. Taking the COVID-19 epidemic as an opportunity, this paper is studied from four parts. In the first part, it analyzes the legal nature of COVID-19 epidemic to difine and analyze COVID-19 epidemic, discusses the characteristics of force majeure and situation change, and probes whether COVID-19 epidemic belongs to force majeure or situation change. The second part analyzes the fulfillment of online shopping contracts under the COVID-19 epidemic, explores the essence of online shoppingcontracts, and analyzes the specific fulfillment of online shopping contracts. Then this paper discusses the liability for breaching online shopping contracts under the COVID-19 epidemic to conclude that different subject matter and different degree of breaching contracts should bear different liability; In the last part, it analyzes the guarantee of the fulfillment of online shopping contracts under the COVID-19 epidemic. In order to fulfill the online shopping contracts successfully, operators and consumers should use their rights carefully and fulfill their obligations according to the contract, and the regulatory authorities should take active supervision. This study explores the fulfillment of online shopping contracts under the epidemic in order to improve the protection of consumers' rights and the development of online shopping.
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