再论旅游吸引物的法律属性

Discussion on Legal Rights of Tourist Attractions

旅游吸引物权兼具旅游行业属性与法律属性,所以从单一的学科出发不能全面认识旅游吸引物的权属问题。旅游吸引物内容复杂,涵盖不同属性的物,无法从法学方面对其进行精确的定义,但这并不意味着必须通过立法或修法赋予其法律地位,而应充分挖掘现行法的价值,营造法律适用的旅游业环境,加强旅游行业法治建设。更好的解决方法是充分利用现有法律规定分析旅游吸引物的内涵和法律属性。解决此类问题可从两方面入手:一是分解旅游吸引物这一整体,将其按属性分类,不同的旅游吸引物归类于不同部门法解决;二是明确由旅游吸引物产生的知识产权收益是引发旅游景区商民冲突的本质原因之一,保障景区居民的知识产权收益权利。

A number of researchers today are discussing the legal rights of tourist attractions. Tourist attractions themselves can be complicated entities in that they can include, for example, natural resources and cultural resources. Furthermore, all tourist attractions have both legal attributes and industrial characteristics. Therefore, it can be difficult to obtain a comprehensive understanding if research only focuses on a single subject. Considering the importance of solving various conflicts in the field of tourism, some researchers have agreed that a legal method for tourist attraction rights is the best choice, yet still disagree as to how to adopt appropriate legal approaches. Some seek amendments to property law by legislating for tourist attraction usufruct and the allocation of fructus civiles. Some advocate to legislate ethical laws to protect tourist attractions＇ rights in ethical tourism areas. Others state that studies on tourist attractions should adopt a legal perspective and focus on the expression and practice of the ownership of tourist attractions. Thus, customary law is one way to create a legal loophole. However, we claim that the above suggestions cannot resolve the conflicts caused by the profit allocation of tourist attractions because the stability and authority of the law are contradictory to these legislative proposals. Both of the above views have not realized the value of the present law. This paper strongly advises the use of the present laws or to legislate judicial interpretation. On the one hand, it is necessary to analyze tourist attraction rights according to the classification of the object of legal relation, namely, property, person, intellectual property, action and information. Consequently, tourist attraction rights are divided into property rights, creditor rights and intellectual property rights. On the other hand, this paper highlights the hidden treasure trove created by intellectual property rights （which are typically neglected by scholars and indigenous people） including trademarks, copyright, trade secrets and geographical indications. Therefore, it is imperative that the value of the intellectual property rights of tourist attractions and their fructus civiles are realized. Furthermore, tourism developers should no longer freely exploit the intellectual property of tourism destinations. Instead, they should pay an intellectual property fee to indigenous people to achieve fair contracts to relieve the severe tension between both parties. Local government should also play a protective role for vulnerable groups instead of engaging in rent-seeking and corruption. The priority, then, is to establish a legal environment within the tourism industry and to improve the legal concept of indigenous people so that tourism developers can be regulated by law. Only then can conflict in tourism be mediated and a sustainable tourism economy developed.