從限制行為能力人網路購物契約效力論企業經營者之困境

Abstract

隨著網際網路的普及，電商平台也順勢應運而起，企業經營者除了實體通路外，也多了虛擬通路的選擇來拓展其事業版圖，有同時經營實體及虛擬通路，亦有單純自虛擬通路起家；同時，也使消費者在購物管道上有了更多的選擇，藉由虛擬通路之特性，即無地域、時間之限制，使消費更加便利。企業經營者得根據現行之消費趨勢，隨時調整其提供之服務或產品組合，以吸引更多消費者購買，提高其營業收入。尤其自2019年底至2020年初嚴重特殊傳染性肺炎（COVID-19)開始流行，透過電商平台進行購物儼然成為疫情期間之消費主流，消費習慣愈來愈依賴虛擬通路，甚至只要於行動裝置進行點選，即可完成所有網路購物流程。 然於現今透過虛擬通路，使購物愈來愈便利的同時，無論是消費者或是企業經營者均面臨有別於實體通路所產生之挑戰及新型態的消費爭議。就基於保護消費者立場，消費者保護法有了猶豫期間及定型化契約等保護消費者之相關規定，又為衡平企業經營者及消費者權益，2015年於消費者保護法第19條增列但書，在通訊交易有合理例外情事時，得不適用猶豫期間之規定等。相較於企業經營者，一般認知消費者通常係處於較弱勢之一方，卻忽略企業經營者與消費者進行虛擬通路交易時，亦有其可能會面臨之風險及困境，尤其是企業經營者並無法如同於經營實體通路般，可確知其交易相對人為何人，亦即交易相對人之不確定性；甚至當碰到實際交易相對人為限制行為能力人時，更要面臨契約有隨時被法定代理人事後拒絕承認之風險，致使法律關係可能處於長時間之不確定性，進一步影響交易安全。 本文將主要以網路購物之企業經營者的立場，分析企業經營者因網路購物特性所面臨交易相對人之不確定性，及因交易相對人之不確定性，而企業經營者事後才知悉實際交易相對人為限制行為能力人時之困境。透過分析相關規範及近期實務見解之評析，尋求可能之解決方案或因應措施。

With the popularity of the Internet, e-commerce platforms have also emerged as the times require. In addition to physical channels, business operators have another option, virtual channels, to expand their business territory. Some of them have both physical and virtual channels, and some operate only virtual channels. And for consumers, they have more choices shopping through physical or virtual channels. With the characteristics of virtual channels, that is, there are no geographical and time restrictions, it is more convenient for consumers to shopping online. Business operators may adjust the services or product portfolio they provide at any time according to current consumption trends, in order to attract more consumers to buy and increase their income. Especially during the period of from the end of 2019 to the beginning of 2020, the severe special infectious pneumonia (COVID-19) is prevalent, shopping through e-commerce platforms has become the mainstream for consumers during the epidemic, and consumption habits have increasingly relied on virtual channels. Consumers just click several times on the page of e-commerce platforms on mobile devices, then they complete all online shopping processes. However, while shopping is becoming more and more convenient through virtual channels, both consumers and business operators are facing challenges and new types of consumption disputes that are different from those generated by physical channels. Based on the consumer protection standpoint, the Consumer Protection Law has provisions related to consumer protection such as cooling-off periods and standard contracts. In order to balance the rights and interests of business operators and consumers, the proviso of reasonable exceptions in the distance sales was added to Article 19 of the Consumer Protection Law in 2015, and the legal effect of which is that the provisions of the cooling-off period may not be applied. Compared with business operators, it is generally recognized that consumers are usually on the weak side. However, lawmakers ignore the risks and dilemmas that business operators may face when conducting virtual channel transactions with consumers. In particular, business operators cannot know exactly who their counterparties are which will not happen in physical channels, that is, business operators face uncertainty of the counterparty in the transaction. There is always a risk business operators face that the contract with persons with limited capacity may be rejected by the guardians at any time, resulting in a long-term uncertainty in the legal relationship and further affect transaction security. This article will mainly analyze dilemmas faced by business operators for the uncertainty of the transaction counterparty due to the characteristics of online shopping and business operators know the aforementioned facts afterwards, as well as seek possible solutions or countermeasures through the analysis of relevant provisions and the review of recent judicial practices.