How to Understand Article 97 of the Tourism Law of the People's Republic of China

Article 97 of the Tourism Law of the People's Republic of China

Interpretation of this article is about the travel agency's violation of the provisions of Article 32 of this law, false propaganda and misleading tourists, Article 24 ordering products and services from unqualified suppliers, and Article 56 failing to handle the legal liability provisions of travel agency liability insurance as required.

First, the subject of law enforcement

The subject of law enforcement stipulated in this article is the "tourism authorities or relevant departments", which should be understood as follows: First, according to Article 53 of the Travel Agency Regulations, "the administrative department for industry and commerce shall punish the travel service information provided by travel agencies to tourists for false contents or false propaganda", which can be understood as a specific provision of this law. The administrative department for industry and commerce shall, in addition to the punishment of revoking the business license of travel agencies, also punish the illegal acts of "false propaganda and misleading tourists" in accordance with the provisions of this article. Secondly, according to the Travel Agency Regulations and its detailed rules for implementation, travel agencies must take out liability insurance and order goods and services from qualified suppliers, and the tourism authorities have the right to enforce the two kinds of illegal acts of travel agencies.

Second, the illegal behavior

The illegal acts stipulated in this article include the following three types:

(A) false propaganda, misleading tourists

The false propaganda stage of travel agencies is mainly before the conclusion of contracts such as package tours, with the aim of promoting tourists to trade with them. Travel agency employees mislead tourists to spend again through false propaganda during their travel itinerary, which is also included. Criteria for judging whether false propaganda misleads tourists: 1. As long as the travel agency fabricates facts, makes false propaganda, or conceals important facts and uses vague language to mislead tourists, it constitutes an illegal act. Second, when it is difficult to understand according to the original intention of laws and legislation, the general understanding of tourists should prevail, not the understanding of travel agencies. There is a similar provision in Article 41 of the Contract Law, that is, "If there is any dispute about the understanding of standard terms, it shall be interpreted according to the usual understanding. If there are more than two interpretations of the standard terms, an interpretation that is unfavorable to the party providing the standard terms shall be made. If the format clause is inconsistent with the non-format clause, the non-format clause shall be adopted. " For example, in practice, the travel agency lists many scenic spots in the package tour contract, but in fact, some scenic spots are just passing by, and tourists mistakenly think that they are sightseeing projects because they have not explicitly told them in advance.

(2) ordering products and services from unqualified suppliers

Article 34 of the law stipulates that "travel agencies shall order products and services from qualified suppliers when organizing tourism activities". Therefore, the key to judge the illegal behavior is whether the supplier is qualified, refer to the explanation in Article 34.

(3) Failing to take out liability insurance for travel agencies as required.

Article 56 of this Law stipulates: "According to the risk degree of tourism activities, the state implements a liability insurance system for operators such as travel agencies, accommodation, tourism transportation and high-risk tourism projects specified in Article 47 of this Law." Article 38 of the Travel Agency Regulations clearly stipulates that travel agencies should take out travel agency liability insurance, and article 39 stipulates the corresponding legal liabilities. Articles 4 and 18 of the Measures for the Administration of Travel Agency Liability Insurance jointly formulated by China National Tourism Administration and China Insurance Regulatory Commission also stipulate the scope and limit of travel agency liability insurance. The travel agency fails to insure according to the regulations, including not insured, not fully insured, and the scope of insurance does not meet the requirements.

Third, legal responsibility.

First, the tourism authorities or government departments shall order the travel agency to correct the relevant illegal acts, and then impose administrative penalties.

1. Administrative punishment for travel agencies. Divided into two grades according to the seriousness of the plot. First, according to the different illegal gains, different punishments are given: first, if there are illegal gains and the illegal gains are less than 50 thousand yuan, the illegal gains will be confiscated and a fine will be imposed at the same time. The scope of the fine is between 5,000 yuan and 50,000 yuan, which shall be determined by the tourism authorities according to the circumstances. Second, if the illegal income is more than 50 thousand yuan, a fine will be imposed at the same time when the illegal income is confiscated, and the scope of the fine will be more than one time but less than five times the illegal income. In the second stage, if the circumstances are serious, the following two different punishments shall be applied according to the circumstances: first, if the circumstances are minor, it shall be ordered to suspend business for rectification; Second, if the circumstances are serious, the business license of the travel agency shall be revoked.

2. There is only one kind of administrative punishment for the directly responsible person in charge and other directly responsible personnel of the illegal travel agency, that is, a fine ranging from 2,000 yuan to 20,000 yuan, which is decided by the department that made the punishment according to the circumstances.