- 英文摘要
- Abstract
In accordance with the Consumer Protection Act Article (CPA) 22, Paragraph 1, advertising content becomes a part of the contract; however, a practical dispute remains on whether and how the advertisement becomes part of the contract. This study examines the facts of the case through the principle of “specificity and clarity,” arguing that this principle helps clarify the balance and choices between the freedom of commercial speech or business operators and the protection of consumer rights.
Despite being directly involved in the advertisement, the endorser is still considered a third party outside the consumer contract between business operators and consumers. Even if the advertisement becomes part of the contract, according to the Fair Trade Act, Article 21, Paragraph 5, the endorser is only jointly and severally liable with the advertiser. However, from the perspective of tort liability, the interpretation of this article may lead to consumers bearing the burden of proving the facts required Moreover, such understanding may also result in the standard of the “knows or should have known” duty of a prudent manager being vague, abstract, and difficult to determine, thereby becoming an arbitrary exercise of the judge’s discretion. Therefore, a need exists to reframe and explore the responsibilities of the endorser to consumers from the perspective of contractual behavior.
Whether the contract validity extends to the endorser between traders and consumers, this study first clarifies the relationship between the Fair Trade Act and the CPA from the consumer protection standpoint. Then, based on four benchmarks-third-party burden of contract, third-party beneficiary contract, Germany’s protective effect contract on third parties, and the Uniform Commercial Code U.C.C.2-318 of the United States, this study confirms that the contracting parties may not necessarily exempt third parties from obligations. A further analysis, by analogy, applies the CPA Article 22 to demonstrate the possibility, necessity, and legitimacy of the endorser being subject to the contract validity.
In this regard, to balance and consider the maintenance of the privity of contract, “adequate information to identify the recommender” is used as a criterion for expanding the contract validity. This criterion is maintained through “reasonable reliance,” the connotation of which, in addition to being reasonably foreseeable by the recommender, also implies the reasonable expectation of the “average consumer.” To avoid traders evading their responsibilities and the current inadequacy of the application of the norm in Article 21, Paragraph 5 of the Fair Trade Act in protecting consumers, a need exists to extend the endorser’s obligation to the contract validity. Since the endorser is subject to the contract validity, it should, in accordance with Article 22 of the CPA, actively and comprehensively fulfill the obligation of “conducting investigations, confirming information accuracy, and providing truthful information to consumers.” The endorser must also bear the burden of proof to respect consumer intentions, thereby realizing the purpose of protecting consumers under the Fair Trade Act and CPA.
- 目次
- 目次
壹、問題緣起、事實概要暨判決要旨
一、問題緣起
二、事實概要
三、判決要旨
貳、問題意識
一、系爭廣告所示內容，是否成為當事人契約之一部分？
二、薦證者是否對消費者負不實廣告之民事責任，應探究不實
廣告之契約效力是否及於薦證者
參、廣告是否成為契約內容之要件
一、實務見解與評析
二、學說見解與評析
三、小結－具體明確性原則內涵之探求
肆、不實廣告契約效力對第三人之建構與開展
一、從消費者之保護，觀察公平法與消保法之間關係
二、第三人義務契約之四個試金石
三、消費者援用消保法第22條規定精神使薦證者受契約效力所
及之可能性、必要性及正當性
伍、結論與建議
