How to Understand Article 35 of Tourism Law "Deceiving Tourists"

This paper is about the business model and specific behavior of travel agencies to induce and deceive tourists to spend in order to obtain illegitimate interests, so as to organize and receive tourists at unreasonable low prices.

For quite a long time, travel agencies have attracted tourists with low quotations that do not include or basically do not include destination reception fees in package tours. Then, they take advantage of the weak position of tourists, such as asymmetric information, being in a strange environment and trusting and relying on travel agencies, to induce and deceive tourists to shop or participate in paid tourism projects, and then gain illegitimate interests by providing tourists with goods, paying the operators of tourism projects to make up for the costs and obtain profits, which is widely criticized by the society. This operation of "low quotation and high rebate" has caused great damage to the healthy development of the travel agency industry and the legitimate rights and interests of tourists, tour guides and other employees:

First of all, it seriously distorts the normal business model of travel agencies. A normal team quotation should consist of three parts: the first part is the procurement cost of transportation, sightseeing, catering and accommodation, the second part is the operating cost such as financial management, labor expenditure and advertising expenses, and the third part is the reasonable profit after deducting the cost. The quotation of "zero-negative tour fee" can not only cover the inevitable procurement and operation costs, but also make no profit at all. Therefore, the "loss compensation outside the embankment" and the interest supplement mechanism that relies on tour guides to advance funds and tourists' consumption kickbacks to fill costs have become the inevitable options for the travel agency's "zero-negative group fee" business model. In this distorted business model, travel agencies no longer pay attention to service quality, market segmentation, line product design and strengthening, but pay attention to ways and means to let tourists spend more besides tour fees.

Second, it has seriously violated the legitimate rights and interests of tourists. Under the "zero-negative tour fee" business model, travel agencies rely on arranging tourists to shop and participate in self-funded projects, deliberately concealing the true information of goods and self-funded projects, and then obtaining illegitimate interests from other operators, infringing on tourists' right to know about consumption and fair trade. For self-funded projects arranged by travel agencies for tourists, operators usually only get a small part of the face price, and most of the income is returned to travel agencies or tour guides; The price of arranged shopping goods is often much higher than the normal level of the local market, and some are several times or even more. When tourists don't want to shop or participate in self-funded projects, it often happens that they are forced or disguised to spend money, which directly infringes on the personal rights of tourists. In reality, there are a large number of cases that infringe on the personal and property rights of tourists.

Third, it distorts the normal mechanism for tour guides and other practitioners to get paid. In real life, travel agencies not only "don't pay wages, sign labor contracts and bear social security fees", but also often ask tour guides to pay the reception fees that should have been paid by travel agencies, and even some tour bus drivers can't get the fees that should have been paid by travel agencies. As a result, relying on kickbacks and other illegitimate interests has become the main source of income for tour guides and other practitioners, which has seriously affected their normal business activities and personal interests.

Over the years, the tourism authorities have made unremitting efforts from legislation to law enforcement to crack down on the "zero-negative tour fare", but the results are still not obvious. Even there has been a situation in which "who can get more kickbacks, whose team offers low prices, whose products are attractive and whose customers share is large", and enterprises have lost the environment of fair competition, resulting in a situation in which "bad money drives out good money". Therefore, it is necessary to design and standardize the system from a more radical and effective perspective.

Travel agencies are not allowed to carry out business activities in the mode of "zero negative tour fee".

In order to reverse the distorted business model of the travel agency industry, create a fair competitive market environment, and safeguard the legitimate rights and interests of tourists and tourism professionals, the provisions in the first paragraph of this article range from the external performance of "organizing tourism activities at unreasonably low prices" to the ways and means of "arranging shopping or paying for tourism projects separately" to the essence of "deceiving tourists" and the ultimate goal of "obtaining illegitimate interests such as kickbacks".

(1) It is prohibited to organize tourism activities at unreasonably low prices, that is, to solicit package tours and other services from travel agencies that shall not be lower than their operating, reception and service costs, except in fair and reasonable circumstances. The "fair and reasonable" situation here mainly includes: after recovering the total cost of bulk purchase of air tickets and generating profits in the later stage of sales, the travel agency reduces the remaining places for promotion by quoting the tour fare, or the travel agency reduces the tour fare by using the incentive money paid by the scenic spots and accommodation operators as a promotion subsidy.

(2) Travel agencies shall not induce or deceive tourists. The situations of inducing and deceiving tourists include: first, travel agencies induce tourists to sign up for tours at unreasonable low prices; The second is to conceal the truth of unreasonable low price, and not to make it clear to tourists that the tour fee is lower than the cost of menstruation, reception and service; The third is to conceal the real situation of shopping places and self-funded projects, such as the real difference between the prices of goods sold in shopping places and the average level of local society; The fourth is not to disclose to tourists the fact that travel agencies will benefit from their consumption.

(three) shall not obtain illegitimate interests through the consumption of tourists. Improper interests include both monetary interests in the form of kickbacks and "headcount fees" and tangible or intangible non-monetary interests.

In particular, due to the nature of attracting tourists and illegitimate interests, the monetary or non-monetary benefits obtained by travel agencies, whether collected publicly or privately, whether recorded or not, are illegal gains.

Two, travel agencies shall not specify specific shopping places, and shall not arrange other paid tourism projects.

At present, there are great differences on this article in society. To this end, we should sort out different opinions from the following three aspects.

(1) Understand that "shopping" and "local special projects" are the basic elements of a tourist itinerary. It is the wish of most tourists to buy some local specialties and souvenirs at tourist destinations and participate in special tourism projects and activities arranged by local non-teams. It is normal to meet the individual needs of tourists. The core of the problem is that tourists' consumption demand for paid items such as shopping should be released voluntarily, independently and voluntarily through their own will, and should not be met passively through the arrangements and requirements of travel agencies.

(2) Understanding the rationality of shopping places determined by travel agencies. Under the "zero-negative tour fee" business model, travel agencies will inevitably choose places or projects with high rebates when determining tourist shopping places and participating in other paid projects, and their operators will pay "headcount fees" and kickbacks to travel agencies according to the number of tourists and their consumption quotas, thus forming an improper interest chain relationship between travel agencies and operators of commodities and tourism projects. Some travel agencies suggest that it is reasonable to take tourists shopping to increase the sales of tourists and businesses, and the latter should pay a certain fee to the travel agency according to the sales commission. But this rationality must meet two important preconditions: first, the operators of shopping and self-funded projects provide services to the whole public, and the prices of their goods and services are open, fair and reasonable, and the price difference of the same goods or services among different businesses will not be too great; Second, the rebate fees paid by the operators of shopping and self-funded projects to travel agencies or tour guides are self-priced, and the channels and procedures for payment comply with relevant laws and regulations. Therefore, the essence of the problem is that under the business model of "zero negative tour fee", the above two important prerequisites are not available. Most of the shopping shops selected by travel agencies only receive group tourists, and the commodity prices are much higher than the normal level of the local market. The operator increases the price on the basis of the normal price and pays the increase to the travel agency; Moreover, the means of payment generally adopts off-account settlement to avoid taxation and other supervision.

(three) to know whether the goods in these places are legally marked. Some people think that under the condition of market economy, commodity pricing is free. As long as the price is clearly marked, both sides are willing to fight and suffer losses. This argument is essentially a distortion of the market economy. A standardized and effective market economic system must be fair market competition and honest management. Under the "zero-negative tour fee" business model, first, these shopping stores essentially expand sales by giving kickbacks to travel agencies and employees, which is unfair competition to other operators. Second, these shopping shops collude with travel agencies to conceal the reasonable prices of the same local goods, which has constituted fraud against tourists. Third, precious items such as jewelry, calligraphy and painting, as transactions between collectors or in the auction market, do have the characteristics that their bids and bids depend on personal preferences and self-judgment. Once it enters the public-oriented circulation field, it must have commodity attributes, and wild speculations are by no means a means of commodity sales under the market economy environment.

Therefore, in order to effectively control the "zero-negative tour fee", the second paragraph of this article prohibits the operation means of obtaining illegitimate interests from travel agencies and cuts off the illegal interest chain, that is, "no specific shopping place shall be designated, and no other paid tourism projects shall be arranged".

Travel agencies shall not specify specific shopping places, that is, travel agencies shall not require or guide tourists to shop in places determined by travel agencies by express or implied arrangements or by direct or disguised arrangements. Travel agencies are not allowed to specify tours and product introduction activities, including shopping arrangements for tourists.

Travel agencies are not allowed to arrange other paid tourism projects, that is, travel agencies are not allowed to arrange or require tourists to participate in tourism projects or activities that require them to pay again, in addition to the tourism projects that have been specifically arranged and included in the tour fare.

Three. Exceptions and requirements for shopping and self-funded projects

Paragraph 2 of this article provides an exception to the above-mentioned prohibition of sexual behavior, but two preconditions must be met:

(1) Both parties reach an agreement through consultation or tourists request. At the request of tourists, travel agencies can decide whether to arrange according to the feasibility; When making suggestions, travel agencies must disclose the real situation of shopping places and self-funded projects to tourists, including the name of shopping places, the content and price of self-funded projects, the length of shopping and self-funded projects, etc. And reach an agreement with the tourists through consultation in the absence of the deception mentioned in the first paragraph of this article.

(two) does not affect the travel arrangements of other tourists. Travel agencies and land agencies must make reasonable arrangements for tourists who do not participate in shopping and self-funded project activities, and cannot waste the time of these tourists. It is a waste of time to let tourists who do not participate in related activities wait for a long time at the scene of shopping or self-funded projects.

Four, travel agencies in violation of regulations should bear the corresponding responsibility for refund.

The third paragraph of this article stipulates the responsibilities that travel agencies should bear after engaging in the business of violating the "zero-negative tour fee". According to the provisions of this paragraph, within 30 days after the end of the trip, the travel agency shall be responsible for returning the goods purchased by the tourists, and if it is necessary to pay the return fee in advance, or fully refund the self-funded project price to the tourists.

According to the principle of contract relativity, tourists have a contractual relationship with the operators of commodities and related tourism projects when shopping and participating in self-funded projects, and the return and refund matters should be directly negotiated with these operators. However, considering the remoteness of tourism activities and the fact that relevant operators are still appointed by travel agencies, especially the illegal nature of travel agencies arranging related activities without consensus, this law stipulates that tourists can ask travel agencies to return goods or refund.

It should be noted that the liability of this paragraph is only civil legal liability, and Article 98 of this Law also stipulates serious administrative legal liability. Illegal travel agencies also need to bear the responsibility of administrative punishment.