What rights and obligations do tourists have in travel contracts?

Abstract: With the development of economy and the continuous improvement of living standards, traveling abroad has become a new consumption hotspot. As an important basis for clarifying the rights and obligations of tourists in tourism activities, tourism contracts have attracted much attention. However, due to the lag of legislation and the low level of legislation, the phenomenon of harming the legitimate rights and interests of tourists still occurs from time to time in practice, and tourism disputes frequently appear. Based on the principles of equality and fairness in civil law, this paper makes a preliminary discussion on the rights and obligations of tourists in travel contracts by referring to the legislative examples of various countries or regions, and expounds its own relevant views.

Keywords: tourists; Travel contract; rights and duties ...

I. What is a "travel contract"

In academic circles, it is generally believed that tourism contracts have broad and narrow meanings. Scholars in Taiwan Province Province have done a lot of research in this field. Zeng Longxing believes that "according to the so-called tourism contract, there are two meanings: broad and narrow." In a narrow sense, the tourism contract only refers to the tourism contract between tourists and the tourism industry. Tourism contracts in a broad sense include tourism contracts in a narrow sense, passenger transport contracts and hotel accommodation contracts. " ; Sun believes that a "re-tourism contract" refers to a contract in which a tour operator plans a trip for a passenger, books accommodation and transportation, assigns a tour leader to lead the passenger to tour and serve with the group, and the passenger pays remuneration. Lin Chenger believes that a travel contract "is called a tourist, which means that the parties agree that the travel agency will provide travel services for the tourists, and the tourists will pay the travel expenses." From the definitions given by various scholars, it is not difficult to see that the latter two have adopted the narrow sense theory, which is also widely used in legislation in various countries. For example, Article 65 1a of the German Civil Code 1 stipulates that "according to the travel contract, the travel organizer is obliged to provide all the travel expenses (travel expenses) to the passengers. Passengers are obliged to pay the agreed travel expenses to the travel organizers. " Article 325 of the Exposure Draft of China's Contract Law "A travel contract is a contract in which travel agencies provide travel services and tourists pay travel expenses." According to the provisions of the new Tourism Law of Japan, a tourism contract is called a "tourism contract", which refers to a contract concluded between a travel agency and tourists who participate in package tours to handle tourism business. 1970 article 1 of the Brussels convention on international tourism stipulates that "travel contracts include organized travel contracts or travel contracts undertaken by intermediaries."

To sum up, the tourism contract mentioned by the author in this paper will also be taken in a narrow sense, that is, the tourism contract is a contract in which the tourism organizer provides tourism to the tourists and the tourists pay the corresponding travel expenses to their tourism organizers.

Second, the obligation of tourists.

(1) obligation to pay fees

This is the main obligation of tourists. As for the type, amount and payment time of travel expenses, the parties can freely agree. Lin Chenger, a scholar in Taiwan Province Province, believes that tourism expenses should include "transportation, accommodation, tour guides and other necessary expenses. (such as agency fees, transportation fees, meals, accommodation fees, sightseeing fees, airport pick-up fees, luggage fees), taxes, remuneration due to tour operators and reasonable profits. " The tourism organization contract of the former Yugoslavia stipulates that "all expenses stipulated in the contract shall be paid within the time limit stipulated in the contract; If there is no prescribed time limit, the passenger shall pay the travel expenses to the travel organizer at the latest on the day when the travel documents are handed in. " In today's actual operation, travel agencies generally take prepayment as the basic principle, that is, tourists have fulfilled their main obligations by paying the fees before going out.

(2) Collateral obligations

According to the principle of good faith and the characteristics of tourism contracts, tourists have certain collateral obligations in tourism activities, which can also be called "passenger payment obligations". For example, tourists are obliged to submit the relevant documents needed for travel in time, assist tour guides to travel safely and orderly, and abide by the time and safety agreements. Article 5 14-3, item 1 of the Civil Code of Taiwan Province Province stipulates that "tourism can only be completed if the passengers act, but if the passengers do not act, the tour operators can set a certain time limit to urge the passengers to do it." However, the provisions in the tourism organization contract of the former Yugoslavia are more strict and detailed, requiring passengers to hand over all the true and complete documents necessary for organizing tourism, especially the personal documents and other certificates necessary for purchasing cars, boats, air tickets, booking hotels and the documents necessary for entry and exit to the tourism organizer. Passengers should pay attention to make themselves, their certificates and luggage meet the conditions determined by relevant border, customs, currency and quarantine regulations and other administrative regulations.

Third, the rights of tourists.

The right to change

In other words, tourists can change the travel contract, and a third person can participate in the tour on their behalf. Of course, there are certain restrictions. In the legislation of various countries or regions, there are mainly: Article 514–4 of the Civil Code of Taiwan Province Province stipulates that "before the tour begins, the tourists may be transferred to a third party to participate in the tour. Tour operators shall not refuse unless there are justified reasons. In accordance with the provisions of the preceding paragraph, if the third party is a tourist, and the expenses are increased, the tour operator may demand payment. If the fee is reduced, the passenger shall not ask for a refund. " Article 65 1b of the German Civil Code stipulates that "(1) Before the start of the tour, the passenger may request a third person to participate in the rights and obligations arising from the tour contract instead of him. If the third party has no special requirements for tourism or its participation in tourism violates laws or orders of administrative organs, the tourism organizer may raise objections to the participation of the third party. (2) If a third party participates in the contract, the third party and the tourist, as joint debtors, shall be responsible to the tourism organizer for the travel expenses and extra expenses incurred by the third party participating in the contract. " The author believes that the establishment of this right is conducive to protecting the interests of both parties to the tourism contract, not just the interests of tourists. Because there may be a certain time limit between the conclusion and performance of the tourism contract, if there are unexpected situations during this period, such as sudden illness and urgent tasks of the unit, it is said that the contract will be fulfilled in person, which will inevitably lead to the failure of the contract. Under certain conditions, allowing tourists to change the contract to a third party can make the contract continue to be performed and make the tourism organizer get the expected profit, without the need for both parties to enter the complicated and annoying process of refunding the price and compensating for the losses.

(2) Right of cancellation

First, the right to terminate at will. Before the start of tourism, it should be recognized that tourists can terminate the tourism contract at will, and after the signing of the tourism contract, before the start of tourism or even after the start of tourism, tourists are allowed to terminate the contract at any time, and such termination does not need justified reasons. However, the tourism organizers should be given appropriate compensation for the losses caused by this. For example, Article 5 14-9 of the Civil Code of Taiwan Province Province stipulates that "before the tour is completed, the passenger may terminate the contract at any time. However, it should compensate the tour operators for the losses caused by the termination of the contract. "

Second, if the travel agency changes the scheduled itinerary before the start of the tour, or the payment provided is flawed and refuses to correct it afterwards, the tourist can terminate the contract. For example, Article 5 1 4–9, Item1of the Civil Code of Taiwan Province Province stipulates that "If the tourism service does not have the value or quality of the preceding article, the passenger may ask the tourism operator to improve it. When the tour operator fails to improve or cannot improve, the passenger may ask for a reduction in fees. If it is difficult to achieve the intended purpose, the contract may be terminated. "

Third, tourists can cancel the contract when they cannot participate in the tour for reasons not attributable to them. For example, Article 65 1e of the German Civil Code stipulates that "if the tourism is obviously damaged due to the defects listed in Article 65 1 C, the passenger may give a notice of termination in advance. The same is true for passengers who cannot expect to travel because of important reasons known to the tour organizers. "

Fourthly, when the payment cannot be made due to natural disasters, unrest, traffic jams or government orders not attributable to both parties, the tour organizer may terminate the contract. For example, Article 65 1j 1 of the German Civil Code stipulates that "if tourism is obviously hindered, damaged or lost due to unforeseeable force majeure at the time of conclusion of the contract, both the tour organizer and the passenger may issue a notice of termination of the contract in advance according to the above standards."

(3) Claims for related damages

Damage compensation is the most basic remedy in all kinds of consumer contracts, so the right of claim is undoubtedly an indispensable basic right for tourists. Claims arising from travel contracts can be roughly divided into:

First, the claim for material damage: mainly aimed at the loss of property carried by tourists in the process of traveling. This kind of damage often occurs in tourism activities. According to the national standard of People's Republic of China (PRC) (GB/T15971–1995), the quality of tour guide service is Qualityoft.

Our-guideservice Principle 3 stipulates that "when a tourist's luggage is lost or damaged, the tour guide should know the loss or damage in detail and actively assist in finding the responsible person. When it is difficult to identify the responsible person, the tour guide should try his best to assist the parties to issue relevant certificates in order to claim compensation from the insurance company and report the case to the relevant departments as appropriate. "

Second, the right to claim compensation for personal injury: the possibility of personal injury in tourism activities. In case of personal injury, tourists should have the right to claim their rights from the tour organizers. The author believes that although travel agencies now require to buy comprehensive travel accident insurance for each tourist before the start of the tour.

Insurance protects the above two rights of tourists to a certain extent, reduces the corresponding risks of travel agencies, but also provides an excuse for travel agencies to shirk their responsibilities. Therefore, from the perspective of protecting the weak, they should be restricted. When the above two kinds of damage are caused by the intentional or gross negligence of the tourism organizer, the tourist can directly claim compensation from the tourism organizer; Of course, its insurance rights should also be transferred to the tourism organizer, which not only avoids the inconvenience that tourists may encounter when claiming insurance, but also makes the risk of the tourism organizer not too high, and at the same time enhances its awareness of service and prevention.

Third, the right of claim based on joint and several liability: the tourism organizer shall bear joint and several liability for personal and property damage caused by the actions of tour guides, tour leaders, drivers and other related auxiliary personnel. Tourists should have the right to claim compensation for such damage. For example, Lin Chenger thinks that the "causes attributable to tour operators" stipulated in Item 2 of Article 5 14-7 of the Civil Code of Taiwan Province Province should include cases caused by the intention or negligence of tour operators. The author agrees with his point of view, because in the travel contract, since the tourism organizer has the right to choose the relevant auxiliary personnel of the tourism service, he should bear the relevant legal responsibilities caused by his improper choice, otherwise, as a tourism service with strong indirect payment, it will undoubtedly provide many excuses for the tourism organizer to evade responsibility.

Fourth, the right to claim compensation for mental damage: tourism is a kind of consumption behavior based on spiritual products, and the exchange of money and goods in the process of tourism is only a means to realize this spiritual consumption. Therefore, the non-performance or incomplete performance of the tourism contract will certainly damage the mental health rights of passengers. ICTC also supports this. Article 13 stipulates that the tour organizer shall be liable for "any loss" caused by its failure to perform its obligations, and item 2 specifically stipulates the compensation limit for personal injury, property loss and other damages suffered by passengers. However, China's General Principles of Civil Law and even the Interpretation of Several Issues on Determining the Liability for Compensation for Mental Damage in Civil Tort issued by the Supreme People's Court have not mentioned whether the liability for breach of contract can claim compensation for mental damage. In fact, it inherits the traditional theory of civil law system, and holds that the amount of debt for property damage compensation can only be generated because of non-performance of debt, and there is no problem of mental damage compensation. Only when the right of personality is damaged by tort can compensation for mental damage occur. In judicial practice, judges generally do not recognize the claims for compensation for mental damage caused by the non-performance of contracts, such as Feng v. Shanghai CTS Holiday Travel Agency. The author thinks that some special cases of breach of contract that have not caused damage to personality rights should also be given appropriate compensation for mental damage, which can be regarded as an exception to the principle of compensation for mental damage. Because the travel contract has its particularity, as Yu said, it consumes a kind of spiritual product. Incomplete performance or non-performance of the contract is bound to cause mental retardation and mental damage to tourists. For example, tourists' purpose of bringing pleasure through tourism has not been realized, which essentially leads to their goal of signing a contract has not been realized. Of course, while giving tourists the right to claim compensation for mental damage, we should also prevent them from abusing their rights, such as not supporting travel agencies without gross negligence or intention, in order to protect the interests of tourism organizers.

Fifth, the right to claim for time waste: this is a unique right of tourists derived from the uniqueness of travel contracts, and the debt of damages arises as time goes by. Typical legislation is as follows: Item 2 of Article 65 1f of the German Civil Code stipulates that "when travel is impossible or obviously damaged, passengers can also ask for money as appropriate compensation for useless use of vacation time." ; Article 514–8 of the Civil Code of Taiwan Province Province stipulates that "if the tour operator fails to travel according to the agreed itinerary, the passenger may claim compensation for the time wasted on a daily basis. However, the daily compensation amount shall not exceed the daily average amount of the total travel expenses charged by the tour operators. " In addition to the above legislation, there are few other countries' legislations, and there are no regulations in China. The author believes that most tourism activities have strong timeliness, and the itinerary has been clearly defined in the travel contract, and most tourists will make corresponding time arrangements accordingly. Once the trip is delayed because of the travel organizer, it will undoubtedly cause unnecessary waste of time for tourists. In today's high-paced social life, the waste of time has gone beyond the original meaning of time and has certain property value. Therefore, the establishment of this right has its necessity and rationality. It will urge tourism organizers to pay more attention to the itinerary and better fulfill the tourism contract. The legislative case of Taiwan Province Province has a good reference value, which not only protects tourists, but also prevents excessive risks of tourism organizers.

1, Zeng Longxing: On Modern Atypical Contracts, Taiwan Province Sanmin Bookstore Co., Ltd., 1988 1 (revised third edition).

2. Sun: Research on Tourism Contracts, Journal of Soochow University Law,No. 1 1 Vol. 1.

3. Lin Chenger: On the Legal Relationship of Tourism Contracts, in Commemorative Collection of Civil Law Retrospect and Prospect in Seventy Years (1): General Provisions and Debts, Beijing: China University of Political Science and Law Press, September 2002.

4. Zheng Chong and Jia Hongmei: German Civil Code (Revised Edition), Beijing: Law Press, April 2006 5438+0.

5. Zhang Song and Song Huiyong: On the Legislation of Tourism Contracts, Law No.4, 1998.

6. Xu Yue: "Japanese New Tourism Law and its Thinking", Journal of Tourism,No. 1997,No. 1.

7. Ning: A Study on Tourism Contracts, Civil and Commercial Law, No.22, No.2002, 1.

8. Lin: Study on the Model of Tourism Contract, Master's Thesis, Law School of Zhongxing University, June 1995.

9.Vikoslav Schmid: Tourism Contract in Yugoslav Law, in Law Translation Series, No.5, 1982.

10, Tan Zhen, Dong Wei: Operational Guidelines for Unknown Contracts such as Tourism, Actors, Advertising, Moving House and Security, Beijing: China People's Public Security University Press, 2000, 1 version.

1 1, in: Trial of Disputes over Tourism Contracts, Law Application No.3, 200 1.

12, Qiao Xianzhi: '99 Selected Cases of Shanghai Court, Shanghai: Shanghai People's Publishing House, 2000.