유럽공통매매법(CESL) 상의 소비자철회권에 관한 연구

Right to withdraw in CESL

Common European Sales Law(CESL) provides that the consumer may in principle exercise the right to withdraw within 14 days from the day on which the consumer has taken delivery of the goods(Art. 40 CESL). When he exercises the right of withdrawal, the distance contracts and off-premises contracts terminate immediately. But CESL does not provide concrete effects of the exercise of the right of withdrawal. This incompleteness of the rules of CESL shows us the situation in which the right of withdrawal does not go well with the traditional contract theory. The former is in the late 20th century introduced in our legal system to protect the consumer. It gives him the right to free himself from his obligations without any reasons. But such content of the right of withdrawal collides with the traditional contract principle, pacta sunt servanda and the right of withdrawal has not yet fixed position in contractual law system. This situation results again from the insufficient establishment of the nature of the right to withdraw. Nonetheless, the right of withdrawal cannot be excluded from CESL. The consumer in EU countries, who has long enjoyed the protection through the right of withdrawal, will consider the common sales law that has no rule of the right of withdrawal as regressive. The maker of CESL has no choice but to proceed with the legislation in incomplete form in relation to the right of withdrawal. Otherwise he would give up the whole CESL.