关于旅游合同示范文本的法律思考

Legal Reflections on the Travel Contract Model

旅游合同示范文本由旅游局和工商局联合制定推广,性质上属行政指导,具有效率、安全、优先及补充等法律价值,示范文本条款分四大功能模块,由通用条款和协议条款组成。目前示范文本是多级制定,种类单一,权威性不高,文章提出完善和丰富示范文本种类和内容、统一示范文本和示范文本备案豁免等建议,以提升旅行社使用示范文本的积极性,发挥示范文本的作用。

China National Tourism Administration issued ＂The Notice of Regulating Foreign-related Tourism Business Contract on a Trial Basis＂ in March of 1990, asking for fully implementing contracts in foreign-related tourism businesses since 1991. The notice attached a draft of the contract model for travel agencies＇ reference, indicating the establishment of a standard travel contract model in our country. It has been over twenty years since the contract model was put into use. This study intends to discuss the model＇s implementations and its existing problems, and tries to demonstrate the model＇s positioning and value from a legal perspective. This paper consists of four parts, including the legal positioning and value of the travel contract model, its structure, its status quo and problems, as well as conclusions and suggestions. The first part expounds that the travel contract model is an administrative guidance, denoting itsnon-obligatory, public right and fair nature. It has the legal value of efficiency, security and supplement. However, its negative effects cannot be ignored though it has been generally used by the travel agencies and tourists. The second part analyzes the structure of the travel contract model, which consists of general terms and negotiable terms. The general terms are fixed and drawn up in advance, reflecting the commonness of travel business. The negotiable terms are negotiated by the parties concerned based on the specific travel deals, reflecting the specific situations of the deal. Functionally the terms of the contract model can be classified into four modules including regulations for transaction parties, transaction contents, transaction implementation and assumed dispute settlement. The third part illustrates the current situations and problems of the travel contract model in its application. The travel contract model was made through multiple administrative levels from the state, provinces to the cities. It seems plenty and multiple on the surface, but is onefold and not authoritative enough in reality. The contract models from different administrative levels are used simultaneously, which is not only confusing but also unnecessary. Finally, the fourth part of the paper draws a conclusion and proposes some suggestions, including perfecting and enriching the variety and the contents of the travel contract models, unifying the contract models, and filing exemptions in the hope of promoting its usage and bringing it into full play.