On the Necessity and Feasibility of Tourism Legislation in China

Sound tourism legislation is the legal premise and guarantee for developing tourism resources, establishing and developing tourism healthily. Accelerating tourism legislation is an objective need to cultivate and standardize the order of the tourism market and meet and integrate China's entry into the World Trade Organization. This is also an important content and step to establish China's tourism legal system. In many countries with developed tourism and perfect legal system, tourism law has formed a relatively complete system and become an important part of the national legal system. Although China has established a basic legal framework system of socialist market economy based on the Constitution and focusing on departmental law, from the perspective of departmental law, there is still a serious lag in China's tourism law. This lag has brought adverse effects on the development of tourism, and even some enterprises, in order to make money and under the guise of developing tourism resources, have come up with projects that destroy the environment and waste resources, disrupting the tourism market and infringing on the legitimate rights and interests of tourists, which makes the sustainable development of China's tourism industry and the establishment of tourism environment face severe challenges. This lag is mainly manifested in:

First, there is a gap between the basic tourism law and the separate tourism law. The tourism basic law belongs to the "constitution" in China's tourism legal system, and it is the source and basis of all kinds of tourism legislation at all levels. The position and function of the Basic Law of Tourism are not only of great significance to the establishment and development of the tourism legal system, but also of normative and guiding significance to the overall development of China's tourism industry. However, since the founding of People's Republic of China (PRC), we have not yet formulated a comprehensive and systematic basic law or a separate tourism law. Since the Ninth National People's Congress, some people have suggested that the state should make the formulation and promulgation of the tourism law the top priority of the current tourism development work, and organize special forces to speed up the legal construction of the tourism industry [1]. In fact, the absence of the tourism basic law makes the whole China tourism legal system construction in a state of "leaderless", and also makes the local tourism legislative activities lack legislative basis and principles to follow. This situation is also one of the important reasons for the disorder of the current tourism market.

Second, the number of national tourism legislation is small, the level is low, and the tourism legal system is very incomplete. After the reform and opening up, China attaches great importance to the construction of the legal system, but so far there is no law specifically regulating tourism relations. There are only three administrative laws and regulations that regulate tourism relations in the State Council [2], and only six tourism laws and regulations promulgated by the National Tourism Administration. Generally speaking, the current laws and regulations do not fundamentally stipulate the principles and measures for the development of tourism in the country at the legislative level, nor do they effectively restrict and adjust the relations between all aspects involved in tourism. Therefore, in China's tourism legal system, laws, administrative regulations and departmental rules, as social public goods, are in a serious shortage and are in a relatively low position in the legislative level. Some administrative regulations and departmental rules have outdated legislative ideas, simple contents and lack of operability.

Third, local tourism legislation is fragmented and lacks unity and coordination. In recent years, in order to realize and guarantee the pillar position of tourism in local industries, some places have successively promulgated local tourism laws and regulations. However, due to the different levels of market economy and tourism development in different places, the legislative levels of tourism laws and regulations in these places are uneven, with different contents, and some of them are in conflict with the national policy orientation. At the same time, because its scope of application is limited to administrative regions, it is impossible to integrate the tourism resources of the whole western region, coordinate the interests of various regions, and realize inter-provincial and inter-regional tourism cooperation.

The principle of jurisprudence tells us that the operation and function of law depends not only on a law or a local legislation, but also on a series of laws, regulations and rules with different categories, different levels and reasonable and orderly structure.

Tourism legislation should also be multi-level and all-round development. To strengthen and improve tourism legislation, we must first coordinate the legislative relationship between the two levels. National legislation should precede local legislation, and it should be able to standardize and guide local legislation on a macro level; Local legislation should be coordinated with national legislation to increase the adaptability of national legislation at the local level and improve the operability of national legislation; It is necessary to mobilize the enthusiasm of "two levels" legislation, and give full play to the functions and roles of national legislation and local legislation in regulating, maintaining and guiding the development and protection of tourism resources, establishing tourism industry, maintaining the order of tourism market, and establishing and operating tourism supervision system.

Secondly, we should speed up the process of national tourism legislation. National legislation involves the following levels of laws and regulations: First, laws to improve the tourism environment. The focus of such national laws is to solve the legal environment problem of tourism development. The main laws involved are company law, anti-unfair competition law, price law, insurance law, food hygiene and safety law, etc. These laws play a very important role in the macro-environment of tourism development. These laws have been formulated and now need to be revised and improved step by step. The second is to speed up the formulation of the tourism law. Tourism law is a comprehensive substantive law and departmental law to regulate the development of tourism. At the same time, this law, as the "Constitution" to regulate tourism, should also provide legislative basis and guidance for separate tourism laws, the State Council tourism administrative regulations and local tourism regulations. Therefore, tourism law plays a decisive role in the establishment and development of tourism legal system. According to NPC deputies' suggestions, the contents of the tourism law should focus on: "clarifying the position of tourism in national economic and social development, determining the principles and measures for the country to develop tourism, establishing a system for rational development and scientific utilization of tourism resources and protecting the environment, and stipulating the protection of tourists' rights and interests" [3]. The third is to improve the tourism administrative law. This is a tourism administrative regulation formulated and promulgated by the State Council, which usually appears in the form of "regulations". The contents of the State Council's tourism laws and regulations are generally operational, and the procedures for formulating them are not as complicated as those for formulating tourism laws. At present, there are mainly Regulations on the Administration of Travel Agencies, Regulations on the Administration of Tour Guides and Regulations on the Administration of Scenic Spots. There are also some administrative regulations related to tourism, such as taxation, entry and exit management, passenger transport damage compensation, etc. However, these administrative regulations are not promulgated specifically for the development of tourism, and their application has certain limitations, and some of them are still uncoordinated and need to be further improved and revised. Compared with other departmental laws, the types and quantity of tourism administrative regulations are far from enough, which is not suitable for big tourist countries. Formulate and promulgate administrative regulations such as Regulations on the Development and Protection of Tourism Resources, Regulations on the Protection of Passengers' Rights and Interests, Regulations on the Management of Tourist Hotels, Regulations on Tourism Safety and Regulations on Tourism Insurance as soon as possible. The fourth is to do a good job in supporting departmental regulations. This is a variety of industry norms formulated by the National Tourism Administration alone or jointly with other departments in the State Council to adjust specific tourism relations. There are nearly 20 departmental regulations, including 13 promulgated by the National Tourism Administration. These departmental regulations are the norms followed by China's tourism industry at present, including some specific regulations and technical standards, and are the main norms for adjusting the national tourism work. Such tourism laws and regulations need to be further cleaned up, supplemented and revised.

Thirdly, the focus of local legislation is to formulate and promulgate local regulations on tourism, regulations on the protection of tourism resources, regulations on the supervision of tourism market behavior and regulations on the protection of tourists' interests [4], to refine the pertinence and operability of legislation and expand the spatial scope of local tourism legislation; Pay attention to turning mature administrative regulations promulgated by the government into stable local regulations in time. This can not only improve local legislation, but also accumulate rich local legislative experience for the formulation and promulgation of the basic tourism law.