论购物佣金的法律治理

On Legal Solution for Tourism Shopping Commission

目前,旅行社扭曲的经营模式是以不合理的购物佣金为基础的,这种购物佣金也几乎必然损害旅游者权益。当前的治理方式主要有两种,即立法禁止与立法规范。但两者都没能解决问题,其共同的困境在于:第一,都是地方立法,受限于地方利益的顾虑,执法者不可能严格执法;第二,都过度依赖行政监管,但行政监管存在自身固有的不足。可行的解决思路是在旅游法中赋予旅游者一项合适的权利,通过旅游者有效的维权活动制约旅行社损害旅游者利益的佣金行为。购物反悔权正是这样一种合适的权利,它将迫使旅行社主动将购物佣金控制在旅游者可以接受的限度内,或者干脆放弃购物安排。此时行政监管的主要职责将转化为保障旅游者该项权利的顺利实现,借此形成市场主导、行政保障的治理模式。

The current distortive business model is based on unreasonable shopping commission, which would inevitably harm tourists＇ rights. At present two solutions include legislative prohibition and legislative standardization. However, neither of these two solutions can work. The common predicament lies in the fact that local legislations are limited by local interests and law enforcers are unable to strictly enforce the law. Both legislations are excessively dependent on administrative supervision, which has its inherent drawback. Feasible solution is to endow tourists with an appropriate right through ＂Tourism Law＂, thus restricting travel agency＇ s shopping commission that harms tourists＇ interests through the effective right-safeguarding activities of tourists. Right to repent under shopping is just such kind of appropriate right. This will force the travel agency to control the amount of commission in the extent that can be accepted by the tourists or the travel agency simply gives up shopping arrangement. Meanwhile, the main responsibility of the administrative supervision will be shifted to the guarantee of smooth enforcement of this right for tourists. Thus, a governance model with leading market and administrative assurance can be formed.