A review of the direct sales and anti-pyramid
Transcription
A review of the direct sales and anti-pyramid
Rahmah Ismail Che Norlia Mustafa Fakulti Undang-undang Universiti Kebangsaan Malaysia 04/03/2015 JPUUM PROJECT 1 OUTLINE OF PRESENTATION 1. INTRODUCTION 2. PROBLEM STATEMENT 3. PURPOSE OF STUDY 4. OBJECTIVES 5. RESEARCH QUESTIONS 6. RESEARCH METHODOLOGY 7. SIGNIFICANCE OF RESEARCH 8. FINDINGS AND SUGGESTIONS 04/03/2015 JPUUM PROJECT 2 INTRODUCTION Whether or one realises it or not, direct sales, which is one of the modes of selling, has gained its foothold in Malaysia long before the Direct Sales Act 1993 (Act 500) came into being Despite the ills that come along with this type of selling, direct sales have made significant contributions to the state’s economy (for e.g in 2008 alone, the direct sales industry was worth RM5.6B) 04/03/2015 Source : The Direct Sales Association of Malaysia Report JPUUM PROJECT 3 INTRODUCTION - CONT However, as direct sales become more popular amongst business operators, it has on the other hand, posed numerous problems to purchasers (e.g intrusion with the privacy of purchasers, concealing the actual purpose of visits to purchasers’ home and et cetera). As a result, the Direct Sales Act 1993 was enacted to curb with these problems while at the same time regulate the direct sale industry. 04/03/2015 JPUUM PROJECT 4 INTRODUCTION - CONT Later the 1993 Act was further improved vide the Direct Sales Amendment (2010) Act (Act A1379) which has expanded the definition of direct sale so as to include sale by electronic transaction (distance selling). Nonetheless there are still some loopholes and other weaknesses in the Act that need to be remedied. Thus, this research was conducted for the purpose of plugging up those loopholes as well as remedying the weaknesses. 04/03/2015 JPUUM PROJECT 5 PROBLEM STATEMENT The Direct Sales Act as amended by the 2010 Amendment Act and which assumes a new name, that is the Direct Sales and Anti-Pyramid Scheme Act 1993 (Act 500) is not comprehensive in terms of protection provided for purchasers in direct sales and distance selling transactions. 04/03/2015 JPUUM PROJECT 6 DIRECT SALES ACT 1993 LOOPHOLES & WEAKNESSES 1. PRELIMINARY Definitional problem: a. direct sale; b. distance selling; and c. Cooling off period limited to pre-delivery of goods or services only. 2. LICENSING REQUIREMENT Not all types of business entities are allowed to operate direct sale business disadvantage to the Country’s economy 5. PROTECTION OF VENDORS No provision on exceptions to the right of purchasers to rescind 04/03/2015 3. RIGHTS OF PURCHASERS TO RESCIND a. Absence of post delivery cooling off period; b. No right to rescind after delivery of goods or services 4. OBLIGATIONS OF VENDORS a. No provision on obligation to collect goods once delivered b. No provision on refund of payments received under the contract 6. METHOD OF RESCISSION Failure to take into account advancement of technology JPUUM PROJECT 7 Direct Sales Amendment (2010) Act (Act A1379) Miscategorisation of type of sale Does not address the aforementioned loopholes/weaknesses in the Act 04/03/2015 JPUUM PROJECT Does not provide a specific part on distance selling 8 PURPOSE OF THE STUDY To study the Direct Sales and AntiPyramid Scheme Act 19993 with a view to proposing some amendments that would enhance the level of protection of purchasers as well as to better regulate the direct sales industry. 04/03/2015 JPUUM PROJECT 9 OBJECTIVES 1. 2. 3. 4. 04/03/2015 To critically examine certain selected provisions in the Direct Sales and Anti- Pyramid Scheme Act 1993 (Act 500); To identify the weaknesses of the Direct Sales and Anti-Pyramid Scheme Act 1993 (Act 500); To compare provisions in the Direct Sales and Anti-Pyramid Scheme Act 1993 (Act 500) with statutes of some other selected jurisdictions; and To propose amendments to the Direct Sales and Anti-Pyramid Scheme Act 1993 (Act 500). JPUUM PROJECT 10 RESEARCH QUESTIONS What are the relevant provisions relating to protection of purchasers in the Direct Sales and Anti-Pyramid Scheme Act 1993 (Act 500)?; What are the weaknesses of the relevant existing provisions?; How would and should the weaknesses in the existing provisions be remedied?; and What lessons may be drawn from other jurisdictions with regard to legal protection afforded to purchasers, without jeopardizing the direct sales industry, by their relevant statutes?. 04/03/2015 JPUUM PROJECT 11 RESEARCH METHODOLOGY This is a qualitative doctrinal legal research which employs the comparative content-analytic – positivist approach to examine and analyze the relevant provisions in the Act. It also has some elements of macro comparative research whereby the provisions of certain legislation of other countries are studied for the purpose of drawing some lessons which may be useful to this research. This research deliberately omits all empirical methods of collecting data in view of the limitations that exist, such as, time and financial constraints. Method of collecting data is therefore solely based on library research, where acts, journal articles and other relevant documents are resorted to as a source of information. 04/03/2015 JPUUM PROJECT 12 SIGNIFICANCE OF RESEARCH This research will help to improve the quality of the Act governing the direct and distance selling industries. It will benefit the purchasers in terms that their rights will be better protected. Whilst the industry may gain in the long run, as the purchasers will have more confidence in dealing with the vendors and as such the industry will be able to further expand. Apart from that the Ministry of Domestic Trade, Cooperatives and Consumerism will be in a better position to make an informed decision before amending the Act in future. 04/03/2015 JPUUM PROJECT 13 PROBLEMS AND SUGGESTIONS NO. 1. 2. PROBLEMS SUGGESTIONS a. Direct sale – does not differentiate between direct sale and distance selling b. Cooling off period a. There should be separate definitions for direct and distance selling. b. The ‘cooling-off period’ should be redefined so as to include the period after delivery of goods and services Definition Licensing requirement Only companies are allowed to operate direct sales business – disadvantage to the country’s economy 3. Rights of purchasers to rescind No cooling-off period after delivery of goods or services, thus leading to deprivation of purchasers’ right to rescind the contract 4. Section 24(1) relating to contents of direct sale should be amended in order to cater for the rights of purchasers to rescind the contract after goods or services are delivered Obligations of vendors a. Absence of obligations of vendors to collect goods once delivered b. Absence of obligation to refund payments received from the purchasers under the contract 04/03/2015 Liberalize the provisions by allowing other business entities to operate the direct sale business JPUUM PROJECT a. To create new provision providing for the said obligation b. To create a new provision providing for the said obligation 14 PROBLEMS AND SUGGESTIONS – CONT. NO. 5. PROBLEMS Protection of vendors Absence of provision excepting the right of purchasers to rescind 6. 7. To create a new provision for such exception Method of rescission Failure to take into account non-conventional methods of rescission, such as electronic method To broaden the scope of method of rescission Distance selling A new PART should be provided which contains the followings: a. Definition of distance selling and its cooling-off period; b. Contents of advertisement; c. Requirements of contract; d. Contents of contract e. Method of rescission; f. Effect of rescission; g. Refunds of payments; h. Obligations to collect goods by vendor; and i. Exceptions to the right to rescind. Specific PART on distance selling is not provided 04/03/2015 SUGGESTIONS JPUUM PROJECT 15 RESTRUCTURING THE ACT PARTS TO BE RESTRUCTURED NO. EXISTING PART PROPOSED AMENDMENT RATIONALE a. PART I - PRELIMINARY PART I - PRELIMINARY b. PART II - REQUIREMENT FOR A LICENCE TO CARRY ON DIRECT SALE BUSINESSES PART II - REQUIREMENT FOR A LICENCE TO CARRY ON DIRECT SALE AND DISTANCE SELLING BUSINESSES It is necessary that the heading of the Part be amended by including the word ‘distance selling business’ for the purpose of clarity and certainty c. PART III – DOOR TO DOOR SALES AND MAIL ORDER SALES AND SALES THROUGH ELECTRONIC TRANSACTIONS PART III – DIRECT SALE: i. Definition of ‘direct sale’, ‘cooling-off period’ and ‘fixed place of business’; ii. Visiting hours; iii. Production of relevant cards when negotiating direct sale; iv. Requirements of direct sale contract; v. Contents of direct sale contract; vi. Rights and obligations during predelivery cooling-off period; vii. Method of rescission; viii. Effect of rescission ix. Refund of payments received under the contract; x. Obligation to collect the goods delivered xi. Exception to the right to rescind the contract There must be a specific part on direct sale in order to avoid confusion regarding the applicability of the provisions in the act 04/03/2015 JPUUM PROJECT 16 RESTRUCTURING THE ACT – CONT. NO EXISTING PART PROPOSED AMENDMENT RATIONALE There must be a specific part on distance selling since the nature of distance selling is distinct from direct sale d. Part IV - DIRECT SALES CONTRACT PART IV – DISTANCE SELLING: i. Definition of ‘distance selling’ and its ‘cooling-off period’; ii. Contents of advertisement; iii. Requirements of contract; iv. Contents of contract; v. Method of rescission; vi. Effect of rescission; vii. Refunds of payments; viii. Obligations to collect goods by vendor; and ix. Exceptions to the right to rescind. e. PART V – COOLING OFF PERIOD AND RESCISSION PART V – PROHIBITION OF PYRAMID SCHEME f PART VA – PROHIBITION OF PYRAMID SCHEME MOVED TO THE NEW PART V g. PART VI - ENFORCEMENT PART VI - ENFORCEMENT h. PART VII - MISCELLANEOUS PART VII - MISCELLANEOUS 04/03/2015 JPUUM PROJECT 17 THANK YOU 04/03/2015 JPUUM PROJECT 18