Selected Cases Jiao Mou and Jiangsu Zhongshan International Travel Service Co., Ltd.

Legal Points: Unauthorized Transfer of Tourism Business and Joint Liability

I. Overview of the facts

Second, the gist of the judgment

Reject the appeal and uphold the original judgment.

It is a breach of contract for Zhongshan International Travel Service to transfer its tourism business to others without the consent of tourists, and its security obligation will not be transferred accordingly. If a travel agency transfers its travel business to other travel agencies without authorization, the travel agency that signed the travel contract with it and the travel agency that actually provided the travel service shall bear joint liability.

Third, evaluation

(1) Problems in this case

1. Is the Thai team a travel assistant of Kang Hui Travel Agency? If Kang Hui Travel Agency undertakes contractual obligations to the plaintiff tourists, the first question encountered in this case is: Is the Thai motorcade the performance assistant of Kang Hui Travel Agency, that is, the person used by the debtor Kang Hui Travel Agency to fulfill the debt? When the obligation to be fulfilled is a travel contract obligation, such a fulfillment assistant is called a travel assistant. If a subject other than the contractual obligor provides accommodation, transportation and other services, the first condition to be satisfied is that the above services provided are within the scope of contractual obligations. In this case, the court of second instance held that "the Thai motorcade belongs to the tourism auxiliary service provider entrusted by Kang Hui Travel Agency to assist Kang Hui Travel Agency to fulfill its obligations under the travel contract". Therefore, in the view of the court of second instance, the transportation service provided by the Thai motorcade should be interpreted as the tourism assistance of Kang Hui Travel Agency within the contractual obligations.

2. Whether the travel agency should be responsible for the fault of the travel assistant. In this case, the defendant Zhongshan International Travel Service claimed: "The Thai motorcade, a tourism auxiliary service provider selected by Kang Hui Travel Service, has legal operation qualification, and the traffic accident was caused by the driver's fault. The loss of the appellee Jiao Jianjun should be compensated by the third party, namely the Thai team. " The defendant's claim means that the travel agency is only responsible for the fault of choosing or supervising the travel assistant. The court of second instance held: "The Thai motorcade belongs to the tourism auxiliary service provider entrusted by Kang Hui Travel Agency to assist Kang Hui Travel Agency to fulfill its obligations under the travel contract, and there is no direct contractual relationship with tourists. The transportation service it provides for tourists is a continuation of the obligations of Kang Hui Travel Agency under the travel service contract and should be recognized as an act on behalf of Kang Hui Travel Agency. " The opinion of the court of second instance means that the travel agency itself should be responsible for the fault of the travel assistant even if it is not at fault in selecting or supervising the travel assistant.

4. If the travel agency transfers the travel business to other travel agencies without authorization, whether it should bear joint and several liability. In this case, the defendant Zhongshan International Travel Service transferred its tourism business to Kang Hui Travel Agency without Jiao Jianjun's consent. Zhongshan International Travel Service argues: "There is no necessary causal relationship between the transfer of tourism business and the occurrence and damage consequences of traffic accidents." Therefore, Zhongshan International Travel Service should not be held responsible. The court of second instance held: "Jiao Jianjun signed an outbound travel contract with Zhongshan International Travel Service, and the two sides formed a tourism service contract relationship. The services provided by Zhongshan International Travel Service shall meet the requirements of ensuring the personal and property safety of tourists. It is a breach of contract for Zhongshan International Travel Service to transfer its tourism business to others without the consent of tourists, and its security obligations will not be transferred. " In addition to the obligation to pay, the parties to a contract also have the obligation to protect, that is, to pay attention to protecting the personal and property safety of the other party during the performance of the contract. This obligation is also called "security obligation" in the judgment. The view of the court of second instance is that if the tourism business is transferred without the consent of the tourists, the security obligations of both parties to the contract have not been transferred. If the transferee causes personal and property losses to tourists due to the unqualified provision of tourism services, the transferor and the transferee shall bear joint liability. The focus of the court of second instance is not the non-transferable obligation and the violation of the obligation constituted by the unauthorized transfer, but the continued existence and violation of the security obligation of the unauthorized transferor.

(B) the reference significance of the judgment

The judgment of this case involves many issues, and the following are the main contents that are special and worthy of reference:

(III) Issues left over from this case

Fourth, go back to the references.

Zhou Jianghong: A Comparison of Personal Injury Liability between China and Japan —— Centered on the Theory of Practical Assistants, Journal of Suzhou University (Philosophy and Social Sciences Edition),No. 1 issue, 20 17.

Shen Haien: Responsibility Undertaking in the Transfer of Travel Agencies —— An Investigation from the Perspective of German Law, Journal of Suzhou University (Philosophy and Social Sciences Edition),No. 1 issue, 20 17.