论旅游服务提供者在包价旅游合同中的法律地位及责任

The Legal Status and Liability of Suppliers of Tourism Services in Package Tour Contracts

针对旅游服务提供者的法律地位及责任问题,《关于审理旅游纠纷案件适用法律若干问题的规定》和《旅游法》都设置了若干规则,但其中某些规则值得商榷。在包价旅游合同中,旅游服务提供者并非旅游合同当事人,而是向债权人(旅游者)履行义务的第三人,也是《合同法》第121条中的"第三人"。旅游服务提供者是否属于旅游经营者的履行辅助人,在我国《合同法》对旅游合同中的违约责任不以过错为要件的背景下并不重要。旅游经营者无干涉、控制可能的公共交通运营者仍应属于旅游服务提供者。根据《合同法》第64条,旅游者对旅游服务提供者应享有履行合同义务或承担违约责任的直接请求权。因旅游服务提供者的原因而致旅游者人身损害或财产损失的,《旅游法》施行以后,旅游服务提供者与旅游经营者承担的是不真正连带责任。

Tour disputes over the legal status and liability of suppliers of tourism services are growing in frequency within the thriving Chinese tourism market. The ＇ Provisions of the Supreme People＇s Court on Several Issues Concerning the Application of Law in the Trial of Cases About Tour Disputes＇, enforced since 2010, stipulates a series of rules. The ＇ Tourism Law of the People＇s Republic of China＇, adopted by the Standing Committee of the National People＇s Congress in April 2013 and to be enforced from October 2013, also refers to this issue. However, the rationality and reasonableness of some of these rules is in doubt. Package tour contracts have two characteristics ： the object is the performance of a comprehensive tour service where the arrangement of a journey is necessary ; and the tourism operator is responsible for the performance of the entire service. A supplier of a tourism service is therefore not a ＇ party＇ in the tour contract, but the ＇ third party＇ performing for the creditor （tourist）. The third party in Article 121 of ＇ Contract Law of the People＇s Republic of China＇ is different from that in a travel agent contract. Most scholars hold the position that the legal status of a tour service supplier is as a performance assistant. However, the performance assistant rule is not significant in the context of the Chinese contract law system, in which negligence is not a requirement for establishing responsibility for a breach of contract. Instead, it is important to establish whether the person making a debtor breach of contract falls into the third party category in Article 121 of the Contract Law of the PRC. The operator of public transportation, whether or not they are in control of the tour operator, also belongs to the supplier of the tourism service and there should be no difference in liability. The tourism operator should take responsibility for a breach of contract to the tourist on behalf of the operator of public transportation. The Provisions above, as well as the Tourism Law of the PRC, do not pay attention to the connection between the performance assistant rule and the responsibility of breach of contract in traditional civil law. Problems have therefore been found in the rules about liability distribution among parties. Based on the interpretation result of Article 64 in the Contract Law of the PRC tourists should have the direct right to claim that suppliers of tourism services must perform contractual duties to them, and these suppliers may also assume responsibility for breach of contract to tourists in particular cases. But the Provisions above and the Tourism Law of the PRC do not confer the direct claim right to tourists, which is a conservative position. If the damage tourists suffer is caused by suppliers of tourism services, the latter should assume the tort liability. According to the Provisions above, the tourism operator only has supplementary liability for the suppliers of tourism services. Instead, according to the Tourism Law of the PRC they should have no real joint liability together. Based on the convention that ＂the new is superior to the old＂ and ＂the special is superior to the general＂, Article 71II of the Tourism Law of the PRC should be applied preferentially.