试论紧急情况下国际旅游消费者的法律保护

A Study on the Legal Protection of International Tourists in Emergency

国际旅游产业蓬勃发展,但危及旅游消费者人身安全的紧急事件频频发生。如何确保国际旅游消费者在紧急情况下的人身安全成为焦点问题。然而,现有关于紧急情况下国际旅游消费者保护的国内和国际法律规制还基本处于空白状态。为此,世界旅游组织新起草了《旅游消费者和旅游服务提供者保护公约(草案三)》(简称"草案三")。"草案三"专门规定了缔约国以及旅游组织者和旅游住宿服务提供者等救助在紧急情况下的国际旅游消费者、通知客源国并与其保持密切协作等方面的义务。中国现有法律规范对国际旅游消费者的保护作了初步规定,但是如何在紧急情况下对其进行保护还存在诸多不足。因此,中国应该完善国内相关立法,积极参与相关公约的起草,推动有关国际旅游消费者保护的法律制度与国际规制的接轨。

With the booming of international tourism industry throughout the whole world, and the increasing of various types of life-threatening emergencies in cross-border travelling activities, the protection of international tourists in emergency has recently become the top priority of all the issues about tourism. However, the issue of the protection of international tourists in emergency did not attract much attention of legislators in the past few years. Therefore, it is found that the protection of international tourists in emergency is rarely covered by both domestic and international regulations. Delightfully, several intemational organizations, especially like UNWTO, have taken the lead to embark on drafting conventions in this regard in recent two years and made great achievements. It is firmly believed that those draft conventions will play a crucial role in making up for this legal loophole in the near future. Therefore, this article aims to discuss and analyze those relevant draft conventions, so as to give suggestions to improve themselves and China＇ s domestic regulations, and encourage further researches on this theme as well. This article firstly discusses the definitions of international tourists and the emergency in tourism and then analyzes the legal protection of international tourists in emergency at national and international levels. After that, this article focuses on the draft convention made by UNWTO, Draft Convention on the Protection of Tourists and Tourism Service Providers （the Third Version）, which is made especially for the protection of international tourists in emergency. To be specific, this draft convention regulates the assistance obligation of the States Parties in case of emergency, including the host country shall assist the tourists and facilitate the satisfaction of tourists＇ primary and basic needs and provide the country of origin of the tourists with relevant information. Moreover, the tourists＇ country of origin shall cooperate with the host country concerning facilitating necessary operational measures and the repatriation of the tourists, etc. But there are many problems that this draft convention has not solved. For example, it does not regulate the cooperative mechanism among States Parties; it does not clearly regulate the assistance obligation of the States Parties in protecting the international tourists uncovered by the travel package; it does not regulate the payment for the rescue of international tourists and relevant liability schemes in this regard. Besides, this article introduces and analyzes China＇s domestic legislative system on the protection of international tourists in emergency. And many problems are also spotted in several aspects, including the legal protection of tourists beyond travel package, the cooperative mechanism of different responsible departments, the payment for the rescue, and the international coordination and cooperation system. Accordingly, suggestions for China are as followings： expanding the scope of legally protected travel package to self-service or semi-self-service tours, establishing a central authority to coordinate the rescue and assistance work, combing the governmental assistance with professional assistance, and actively participating in drafting conventions on protecting international tourists and keeping up with international legal systems on tourists protection in emergency.