权利视角下的旅游权利主体探究——兼与国内若干学者商榷

Inquiries into the Subject of Travel Right in Connotation of the Right: Discussion with Domestic Scholars

权利是一个复杂的话语,从权利概念的发展来看,单纯强调权利的道德属性或是法律属性都会使权利陷入无法解决的困境。因为法律权利不能自证其身,它必须得到道德原理的支持,而道德权利脱离了法律的保护,将沦为被人任意诠释和篡改的文字。旅游权利也具有此属性。因此,在解读旅游权利道德属性和法律属性的基础上,来探究旅游权利的内涵与主体是非常必要的。基于目前国内对旅游权利的理解存在的局限———将之窄化为"旅游者权利",而这与旅游权利的属性是背道而驰的。旅游权利不仅指旅游者的权利,还包括了旅游企业及当地居民的权利。尤其对处于被忽视状态的当地居民的权利,唯有正视且关注它,才能真正实现旅游权利的道德属性与法律属性的完美结合。

The area of ＇rights＇ is a complex discourse.In the development of this concept,rights is an elusive concept as it not only has legal attributes but also moral ones.A pure emphasis on the moral or legal aspect will cause it to fall into an irresolvable dilemma.Because legal rights cannot stand on their own,they must be supported by moral principles.On the other hand,if a moral right is freed from its legal protection,it will be reduced to an arbitrary interpretation.Travel rights also have this attribute.However,there are errors in the current thinking of domestic scholars about this right.This paper suggests that it has been narrowed down too much to a ＇tourist right＇,and thus only gives travel rights to tourists.This view is based on an inadequate understanding of the travel right.The result of reading tourism legislation on this basis is bound to be inaccurate and cannot provide the justifiable support for a genuine travel right.After canvassing the travel rights views of domestic scholars,this paper first reveals that domestic scholars take the travel right to only mean a tourist right.If tourism law is based on this inadequate understanding this will result in unjustifiable support for that right.It then reveals two types of rights in the development path： travel as a moral right and travel as a legal right.The former belongs to the system of morality and is justified by the moral principle,while the latter belongs to the legal system supported by the law.It should be pointed out that the travel right has both moral and the legal attributes,although it is not enough to only stress the moral aspect.It is also difficult to keep the underlying moral authority if only the legal attribute of the travel right is emphasized.From the moral perspective,the travel right is a human right.From the legal perspective,the travel right has been acknowledged and protected by the law but it must be supported by moral principles.A travel right without the support of moral principles will face the criticism of lacking legitimacy.If the travel right amounts only to a tourist right,it will also face such criticism.In reality,however,the travel right is difficult to protect.This paper suggests that the travel right includes not only the travel right of tourists,but also the rights of tourism enterprise operators and local residents.In particular,this includes local residents whose concerns have been ignored much of the time.Only by facing these issues about the travel right can we understand the combination of the right＇s moral and legal attributes.The subject of the right to travel is of concern to legislators.It should therefore not only be about tourists.It should also be defined to take into account the sustainable development of tourism,which includes the perspective of tourism enterprise operators and local residents.Because of the difficulties encountered in tourism in China today,exploring the moral and legal attributes of the travel right,and clarifying this right in relation to tourism legislation,are both necessary for the sound development of the tourism industry in this country.