"The Supreme People's Court on the trial

Interpretation of "Regulations on some issues of applicable law of tourism disputes (on)

    Author Huang Huiyue Jiangnan Travel NewsRelease2010.11.11

In October 26, 2010, the Supreme People's Court issued "provisions of the Supreme People's Court on the law applicable to a number of travel disputes trial" (hereinafter referred to as "Regulations"), the "Regulations" shall be implemented as of November 1, 2010. "Regulations" to fill the legal blank treatment tourism disputes, to regulate the travel agency business behavior, guided the tourists rational adults, and earnestly safeguard the tourists and tour operators, travel service has a very important significance of legitimate rights and interests. That is, the "rules" the introduction of the original intention, is to all levels of court trial fairness and efficient travel service disputes, and not specifically for the tourism management departments handling tourist complaints and the establishment, in spite of this, "Regulations" for the tour operators and tourists, tourism service consultation solve disputes and tourism management departments of tourism service dispute mediation also has a direct role in guiding, tourism management department can "spirit and principle", properly handle the tourism service dispute.

One, "Regulations" characteristics

Our law does not make provisions on the travel contract and travel tort. Interpretation is based on the principle of contract law, and consumer protection law, tort law, civil procedure law of the relevant provisions of the law. In view of this interpretation is made according to the needs of trial practice, and with the fill in the blank of nature,

1, comprehensive. Civil liability is mainly composed of the liability for breach of contract and tort liability, liability for breach of contract dispute solution depends mainly on the "contract law", to solve the dispute over the liability for tort is mainly based on the "tort liability act", this spirit and the principle of integration of the many legal and "Regulations", the tourism service dispute wholly into a judicial interpretation.

2, practical. "26 regulations" in, is according to the relevant provisions of law, the actual travel service disputes, formulate the law can be applied directly, these laws can be used not only for the people's court tourism disputes, also apply to the tourism administration departments for tourism dispute mediation and negotiation.

3, fairness. Due to the special nature of the tourism industry has not been fully accepted by the society, in accordance with China's existing laws and regulations, tourism operators bear more civil obligation, is detrimental to the development of the tourism industry. "Regulations" focus on practical, more equal protection of tourists and tourism operators legitimate rights and interests of both sides.

4, breakthrough. "Regulations" promulgated and implemented the significance, not only in that it has a comprehensive, practical and fairness, but also for the provisions of the existing laws and regulations breakthrough, more practical and tourism industry, to further establish and improve the legal system of tourism has a leader role.

   Two, "Regulations" in the tourism service dispute processing applications

Article 1 the term tourism disputes, is refers to between the tourists and tour operators, tour assistant because of tourism contract dispute or infringement disputes.

"The tour operator" refers to the name of their tourism business, tourism provides services to the public. "Tour assistant" is the existence of a contractual relationship with tour operators, tour operators to assist tourism contract obligations, the actual traffic, tour, accommodation, catering, entertainment, tourism service. Tourists in the tourism process and its attractions operator for travel disputes, the rules are applicable.

Interpretation: in tourism service disputes, mainly includes the dispute on tour contract and travel disputes. Tourist contract disputes, mainly refers to the tourists that travel operators did not fulfill the contract or the performance does not meet the agreed contract caused by the disputes; tourism disputes, mainly refers to the tour operators in violation of the provisions of laws, cause tourist person property damage arising from the dispute. For the convenience of writing, the author of the tour operator is confined to the travel agency, the tour assistant called tourism service suppliers.

The law covers all types of disputes exist in tourism service. In the tourism service dispute, either the tourist contract disputes, or tourism disputes, either this or that. Under normal circumstances, the vast majority of travel contract disputes, such as tourists often travel to the management of complaints, travel agencies do not provide services in accordance with the contract, resulting in leakage of attractions, unauthorized increase items at their own expense, reduces the service standard, belong to the basic category of breach of contract disputes. The tourist personal property damage claims, often belong to the category of infringement disputes. Of course, the personal and property damage after the occurrence of tourists, tourists can also be in accordance with the "general principles of civil law", "consumer protection law", "contract law" provisions, travel agency claims not in accordance with the contract, provide security service products, travel agency requirements for liability for breach of contract; but travel attractions such as leakage, tourists can only be a travel agency liability for breach of contract, not the tort liability of travel agency.

In the industry, tour assistant more called travel service suppliers, tourism traffic, tourism destination travel, attractions, hotels, restaurants and other service providers are part of the. In accordance with the provisions of existing laws and regulations of China, except force majeure, all the loss of tourism service suppliers intentionally or negligently caused, travel agencies will first summarize withstanding, between tours travel agency with the service provider's dispute is handled properly, does not influence the first tourists to make compensation. But the "Regulations" considering the actual circumstance of our country tourism business, will cause the public traffic management risk has made the appropriate allocation, reduce the travel agency business risk.

The second unit, family and collective form is concluded with a tour operator travel contract, in the event of disputes during the performance, in addition to the collective to the contract party sued, individual tourists travel contract dispute lawsuit filed, the people's court shall accept the case.

Interpretation: in the past in a tourism disputes, often make the Department of tourism management problem is, the unit signed with the travel agency and perform the tourism contract, when the unit staff on the service quality raised objections to the travel agencies, travel agencies tend to have no contractual relationship with tourists on the grounds, refused to bear the liability for breach of contract. According to the contract relative principle, the travel agency view seems to also can make out a good case, Department of tourism management is sometimes quite helpless. According to the "Regulations" requirements, the future whether units or a family and travel agency contract, and whether the unit, the family, or individual tourists, as long as the travel agency breach of contract, travel agency shall not be no contract relations on the reasonable demands, to tourists, tourism management departments to meet such tourist complaints, also must accept. Of course, tourist individual complaints can be accepted, only procedural provisions, is how to determine the individual tourist complaints status, but does not necessarily mean that the tourist complaints in line with the law, and the travel agency must make compensation to the tourists, or tourism management department will support the tourist complaints. Only tourists did suffer losses, and losses due to reasons in the travel agency, tourist losses may be redeemed.

Article third for the same reason tour operator caused tourists personal injury, property damage, tourists choose tourism operators bear the liability for breach of contract or tort liability, the people's court shall hear the parties choose case.

Interpretation: when the travel agency, in violation of the provisions of laws, national standards or industry standards, cause tourist personal injury, property loss occurs, the tourist may according to their actual needs, request the travel agency to undertake responsibility of breach of contract or tort liability. Make a claim for the tourists, travel agencies in the negotiation stage, can not make clear what is the liability for breach of contract or tort liability, has reached a settlement with the tourists, and tourism management departments are different, we must distinguish between travel agencies must bear the liability for breach of contract or tort liability, then according to the tourist complaint requests for mediation. In the process of mediation, tourism administrative department shall, according to the tourist's request for compensation, discusses tourist damage fact, causality between facts of damage and travel behavior, to make reasonable judgments. If tourists propose default compensation request, in addition to the actual loss of tourists, tourism management departments should not support request compensation for spiritual damage of tourists; put forward if tourists tort claims, tourism management department for the travel agency liability, but also to the travel agency and tourist consultation for mental distress.

Fourth reasons for tour assistant to tour operators default, tourists and tourism operators only prosecution, the people's court may add the tour assistant for third people.

Interpretation: tourism service disputes, in addition to the tourist own reason and the third reasons, is the main cause of travel and tourism service providers of fault or negligence. In the processing of tourism service disputes, the travel agency for their own fault or negligence, generally able to identity and responsibility, but the cause of the tourism service suppliers of disputes, travel is always on the grounds of non self fault, not willing to take responsibility.

The Department of Tourism Management for tourism service providers have no jurisdiction, not to take coercive measures to the service provider, to coordinate the work requires them to participate in the tourist complaints. Therefore, tourism management according to the principle of contract relativity, ask travel agencies to assume responsibility, if the loss is caused by the tourism service suppliers, travel through negotiation or litigation to recover, then travel service suppliers. The law consultation in the tourist complaint and mediation stage, have no obvious effect, but in the stage of the proceedings, the people's court according to law, summoned travel service suppliers to participate in the respondent, directly bear the corresponding legal responsibility by it, has a protective effect is good for travel agencies.

The fifth tour operators have liability insurance, travel insurance liability accident because only prosecute tour operator, the people's court may parties should request insurance companies will be listed as third people.

Interpretation: in the practice of tourism safety accident treatment, one of the most headache problems for travel agency, is when the tourist traffic accident responsibility was identified as the travel agency, the insurance company for compensation for the slow response, refused to compensate or unwilling to bear in full the commitment of medical or death compensation, travel agency liability is difficult to implement, the tourists are difficult to obtain compensation for the first time. In this sense, the event of a large personal property casualty insurance company claims, if negative, the travel agency should mobilize tourists start judicial procedure, the insurance company is listed as the third person, can quickly solve disputes, protecting the tourist and the travel agency's legitimate rights and interests.

Sixth tourism operators in the format contract, notice, statement, a form of notices to tourists unfair, unreasonable, or reduce, exempt from the damage the legitimate rights and interests of tourists, tourists request, according to the provisions of article twenty-fourth of the consumer protection law that the content is invalid, the people's court shall support.

Interpretation: "overlord clause" is a people known for unreasonable terms, as long as there is unilateral, and the rights and obligations of operators shall allocate unjust clause a clause in the contract, all belong to the so-called "overlord clause" category. In accordance with the law the case, the people's court shall identify these Provisions invalid.

In the travel agency service, in order to reduce the operation risk, the travel agency naturally or half unconsciously to use some terms of format, notice or statement, reduce the travel agency liability, such as travel agencies often stressed in a tour, travel agencies in does not reduce the premise of tourist attractions, tourist attraction reserves the right to adjust the right sequence of the reservation of the hotel; cancelled, the travel agency has the change in hotels right; or cancelled flights, all losses shall be borne by the tourists take etc.. These prior statement in common, is to expand the travel agency's rights, damage the legitimate rights and interests of tourists. The travel agency before the group to tourist travel, is the most important part of the tourism contract, as long as no irresistible and unexpected events, travel agencies must hundred-percent according to travel arrangements, to provide services for tourists, even if not reduce the attractions, as long as the adjustment of the order of tourism, travel agency still belongs to the default behavior. Tourists in accordance with the requirements of travel contract, the travel agency must unconditionally cooperate. The travel agency such statements, it belongs to the "despot clause".

Of course, not simply declare travel agency in advance, all as "overlord clause", not only the program, should see entity. If there is no increase in travel rights, have aggravated the obligation of tourists, duty has no effect on the tourist's rights, even notice, the travel agency unilateral gives a statement, also do not belong to the category of "overlord clause".

The seventh tour operators, tour assistant failed to fulfill the obligation of safety guarantee, cause tourist personal injury, property damage, tourists request tour operators, tour assistant responsibility, the people's court shall support.

For the third act of tourists personal injury, property damage, by third people to assume responsibility; tour operators, tour assistant violation of security obligation, tourists requested its commitment to the corresponding supplementary liability, the people's court shall support.

Interpretation: the security obligation is a legal obligation of the travel agency should make, "consumer protection law", "tort liability act" and "travel regulations" are clearly defined, whether or not there is clearly agreed in the contract of tourism, travel agencies and service providers must fulfill the obligation of safety guarantee, ensure tourist during the tour of the personal and property safety.

In tourism, travel agencies must first ensure that tourism products and services are safe, the travel agency to arrange tours for the individual needs of tourists, otherwise once appear tourists personal and property safety, travel agency may bear the responsibility for compensation. If the travel agency the elder tourists climbing, hiking across the desert and other special tourism projects, the old tourists to participate in this project is also has some responsibility, but the primary responsibility is a travel agency, so the line itself is not suitable for the elderly, travel agencies to sell such products, is the lack of safety consciousness. Secondly, the travel agency must perform a warning, inform and warn, once again, the travel agency must also take measures, prevent the occurrence of damage, and prevent damage to expand.

If the infringement responsibility not travel agency, not travel service suppliers, but to travel outside of the contract third of personal property, tourist damage shall be composed of third people (the infringement responsibility, for example) tourist normal walking in the tourism destination by the car, the driver of a car should bear the responsibility for compensation, the travel agency can't should bear the responsibility for compensation; if the guide tourists crossing the road, do not leave the crosswalk line, traffic accidents, the driver of a car should assume tort responsibility is, but travel agencies must also bear the corresponding responsibility, because the travel guides do not obey the traffic rules, the travel Agency for some of the responsibility for the accident the.

The eighth tour operators, tour assistant may endanger the tourist personal and property safety, tourism project fails to inform, to warn tourists, cause personal injury, property damage, tourists request tour operators, tour assistant responsibility, the people's court shall support.

Tourists not to tour operators, tour assistant asks for personal health information and tourism related activities and perform the duty of disclosure, or not to follow the tour operators, tour assistant to inform, without warning, in suitable conditions of tourism activities, the emergence of personal injury, property loss caused in the process of tourism the tourist asked, tour operators, tour assistant responsibility, the people's court shall not support.

Interpretation: inform, warning is the safeguard duty of travel agency is an important part of, travel agency must be based on the individual difference of tourist routes and tourism, to make a difference in informing and warning. Specifically inform, to warn the content must be specific and clear. Inform the content must be very specific, not to be a mere formality, let tourists listened to understand, embodies the practical. Inform the duty to warn, must see a specific object, namely the tourists of different culture background, health status, living environment, perform the relevant obligations. Inform the duty to warn, must according to different products, conventional line with conventional line tips and instructions, non line non conventional line warning and reminder, do not follow the same pattern. Inform the duty to warn, preferably in writing. Many travel agencies to fulfill the obligation of informing, mainly depend on the tour guide (leader) oral notification, and the guide (leader) is to fulfill the corresponding obligation, but not to produce relevant evidence in court, can hardly be avoided losing. At the same time, because the tourists themselves, such as health, the report did not listen to discourage in force and not the tourism project, personal and property damage caused by tourists, travel agencies do not take responsibility and tourism service suppliers.

The ninth tour operators, tour assistant leakage tourists personal information or without the consent of tourists disclose their personal information, tourist request its responsibility, the people's court shall support.

Interpretation: Although the law has been clearly defined, such as citizen individual information privacy is protected by law, but tourists how your personal information protection has yet to be standardized. The "Regulations" the provisions, if the tourist personal information was leaked, travel agencies, travel agencies must bear legal responsibility for this, this is for the protection of personal information to tourists, travel agencies to actively strengthen the role of management.