涉外旅游合同法律适用规则探析

On the Application of Law to the International Travel Contract

伴随旅游服务贸易的蓬勃发展,涉外旅游合同的法律适用问题成为我国国际私法领域中需加以研究的一个重要课题。文章通过比较中外法律适用规则的立法技术,从立法目的如何实现的角度指出我国现有规则的局限;同时,以涉外旅游合同的特殊性为基点,分析现有规则的契合性,得出我国已有涉外消费者合同法律适用规则不足以解决涉外旅游合同争议的结论。研究认为,应专门立法,采用惯常意义上的意思自治原则;发挥经常居住所法的正向价值并吸收最密切联系原则补缺。

International travel is an important part of the international service trade. In the 21 st century, travel and tourism have become of greater importance in both people＇ s lives and in economic growth. China currently receives the greatest number of tourists and its citizens represent the largest tourist group worldwide. However, such growth is also associated with a growth in international travel contract disputes in the Chinese travel industry. A scientific application of the rules that govern such disputes can be used to appropriately resolve international travel disputes, safeguard the legal rights and interests of tourists, and promote the long-term development of the tourism industry. As travel contracts in China are essentially nameless contracts and international travel involves international consumption, this paper first explores the existing laws that apply to international travel contracts. Laws governing international consumers include those that apply to international travel contracts： laws from tourists＇ habitual residence apply to travel contracts; if a traveler chooses the applicable laws of the locality where the goods or services are provided or if an operator has no relevant business operations at the habitual residence of the tourists, then the laws of the locality where the provision of goods or services occur shall apply. However, if the applicable laws mentioned above are contrary to China＇ s public interests or directly applicable laws exist for international tourism, we should make use of the laws in China. This paper then compares the various techniques of law making worldwide, and identifies the limits of the application of laws in China to fulfill their purpose. As in other countries, China＇ s laws aim to provide necessary protection to consumers. However, in China the application of consumer contract law is quite different than in other countries. For example, in China these laws place strong limitations on the doctrine of autonomy of will, disregard the principle of the most significant relationship, and only include the laws from tourists＇ habitual residences in some legislation. This results in rigid connection points that do not always satisfy the demands of tourists. In addition, such connection points are hard to identify when tourists are frequently travelling to many destinations. Finally, some conclusions are presented, including that China should establish special rules on the application of laws on international travel contracts. The following points should be emphasized when establishing such rules. （1） Tourists are the pursuers of their touring rights; therefore, China should follow the doctrine of autonomy of will, and respect the personal choices of tourists. （2） The law at the habitual residence of tourists is the most important reference when deciding rules to govern the application of laws. When parties cannot agree on the applicable laws, we should exploit the positive value of the laws at the habitual residence of tourists. （3） The doctrine of the most significant relationship should be adopted in our international travel contracts legislation when necessary. The principle of the most significant relationship provides judges with the discretion to choose the applicable law, which could help to offer a greater protection of tourists＇ rights. To avoid the abuse of the doctrine of autonomy of will and the principle of the most significant relationship, we should follow the principle of acting to protect the weaker party.